cession of Louisiana to this country, by France, in 1803, may have
some bearing on this question. The article referred to provides, "that
the inhabitants of the ceded territory shall be incorporated into the
Union, and enjoy all the advantages of citizens of the United States,
and in the mean time they shall be maintained and protected in the
free enjoyment of their liberty, property, and the religion they
profess."
As slavery existed in Louisiana at the time of the cession, it is
supposed this is a guaranty that there should be no change in its
condition.
The answer to this is, in the first place, that such a subject does
not belong to the treaty-making power; and any such arrangement would
have been nugatory. And, in the second place, by no admissible
construction can the guaranty be carried further than the protection
of property in slaves at that time in the ceded territory. And this
has been complied with. The organization of the slave States of
Louisiana, Missouri, and Arkansas, embraced every slave in Louisiana
at the time of the cession. This removes every ground of objection
under the treaty. There is therefore no pretence, growing out of the
treaty, that any part of the territory of Louisiana, as ceded, beyond
the organized States, is slave territory.
Under the fifth head, we were to consider whether the status of
slavery attached to the plaintiff and wife, on their return to
Missouri.
This doctrine is not asserted in the late opinion of the Supreme Court
of Missouri, and up to 1852 the contrary doctrine was uniformly
maintained by that court.
In its late decision, the court say that it will not give effect in
Missouri to the laws of Illinois, or the law of Congress called the
Missouri compromise. This was the effect of the decision, though its
terms were, that the court would not take notice, judicially, of those
laws.
In 1851, the Court of Appeals of South Carolina 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 Massachusetts, by the said slave
being taken there. (5 Leigh Rep., 615.)
The slave States have generally adopted the rule, that where the
master, by a residence with his slave in a State or Territory where
slavery is prohibited, the slave was entitled to his freedom
everywhere. This was the settled doctrine of the Supreme Court of
Missouri. It has been so held in Mississippi, in Virginia, in
Louisiana, formerly in Kentucky, Maryland, and in other States.
The law, where a contract is made and is to be executed, governs it.
This does not depend upon comity, but upon the law of the contract.
And if, in the language of the Supreme Court of Missouri, the master,
by taking his slave to Illinois, and employing him there as a slave,
emancipates him as effectually as by a deed of emancipation, is it
possible that such an act is not matter for adjudication in any slave
State where the master may take him? Does not the master assent to the
law, when he places himself under it in a free State?
The States of Missouri and Illinois are bounded by a common line. The
one prohibits slavery, the other admits it. This has been done by the
exercise of that sovereign power which appertains to each. We are
bound to respect the institutions of each, as emanating from the
voluntary action of the people. Have the people of either any right to
disturb the relations of the other? Each State rests upon the basis of
its own sovereignty, protected by the Constitution. Our Union has been
the foundation of our prosperity and national glory. Shall we not
cherish and maintain it? This can only be done by respecting the legal
rights of each State.
If a citizen of a free State shall entice or enable a slave to escape
from the service of his master, the law holds him responsible, not
only for the loss of the slave, but he is liable to be indicted and
fined for the misdemeanor. And I am bound here to say, that I have
never found a jury in the four States which constitute my circuit,
which have not sustained this law, where the evidence required them to
sustain it. And it is proper that I should also say, that more cases
have arisen in my circuit, by reason of its extent and locality, than
in all other parts of the Union. This has been done to vindicate the
sovereign rights of the Southern States, and protect the legal
interests of our brethren of the South.
Let these facts be contrasted with the case now before the court.
Illinois has declared in the most solemn and impressive form that
there shall be neither slavery nor involuntary servitude in that
State, and that any slave brought into it, with a view of becoming a
resident, shall be emancipated. And effect has been given to this
provision of the Constitution by the decision of the Supreme Court of
that State. With a full knowledge of these facts, a slave is brought
from Missouri to Rock Island, in the State of Illinois, and is
retained there as a slave for two years, and then taken to Fort
Snelling, where slavery is prohibited by the Missouri compromise act,
and there he is detained two years longer in a state of slavery.
Harriet, his wife, was also kept at the same place four years as a
slave, having been purchased in Missouri. They were then removed to
the State of Missouri, and sold as slaves, and in the action before us
they are not only claimed as slaves, but a majority of my brethren
have held that on their being returned to Missouri the status of
slavery attached to them.
I am not able to reconcile this result with the respect due to the
State of Illinois. Having the same rights of sovereignty as the State
of Missouri in adopting a Constitution, I can perceive no reason why
the institutions of Illinois should not receive the same consideration
as those of Missouri. Allowing to my brethren the same right of
judgment that I exercise myself, I must be permitted to say that it
seems to me the principle laid down will enable the people of a slave
State to introduce slavery into a free State, for a longer or shorter
time, as may suit their convenience; and by returning the slave to the
State whence he was brought, by force or otherwise, the status of
slavery attaches, and protects the rights of the master, and defies
the sovereignty of the free State. There is no evidence before us that
Dred Scott and his family returned to Missouri voluntarily. The
contrary is inferable from the agreed case: "In the year 1838, Dr.
Emerson removed the plaintiff and said Harriet, and their daughter
Eliza, from Fort Snelling to the State of Missouri, where they have
ever since resided." This is the agreed case; and can it be inferred
from this that Scott and family returned to Missouri voluntarily? He
was removed; which shows that he was passive, as a slave, having
exercised no volition on the subject. He did not resist the master by
absconding or force. But that was not sufficient to bring him within
Lord Stowell's decision; he must have acted voluntarily. It would be
a mockery of law and an outrage on his rights to coerce his return,
and then claim that it was voluntary, and on that ground that his
former status of slavery attached.
If the decision be placed on this ground, it is a fact for a jury to
decide, whether the return was voluntary, or else the fact should be
distinctly admitted. A presumption against the plaintiff in this
respect, I say with confidence, is not authorized from the facts
admitted.
In coming to the conclusion that a voluntary return by Grace to her
former domicil, slavery attached, Lord Stowell took great pains to
show that England forced slavery upon her colonies, and that it was
maintained by numerous acts of Parliament and public policy, and, in
short, that the system of slavery was not only established by Great
Britain in her West Indian colonies, but that it was popular and
profitable to many of the wealthy and influential people of England,
who were engaged in trade, or owned and cultivated plantations in the
colonies. No one can read his elaborate views, and not be struck with
the great difference between England and her colonies, and the free
and slave States of this Union. While slavery in the colonies of
England is subject to the power of the mother country, our States,
especially in regard to slavery, are independent, resting upon their
own sovereignties, and subject only to international laws, which apply
to independent States.
In the case of Williams, who was a slave in Granada, having run away,
came to England, Lord Stowell said: "The four judges all concur in
this--that he was a slave in Granada, though a free man in England,
and he would have continued a free man in all other parts of the world
except Granada."
Strader _v._ Graham (10 Howard, 82, and 18 Curtis, 305) has been cited
as having a direct bearing in the case before us. In that case the
court say: "It was exclusively in the power of Kentucky to determine,
for itself, whether the employment of slaves in another State should
or should not make them free on their return." No question was before
the court in that case, except that of jurisdiction. And any opinion
given on any other point is _obiter dictum_, and of no authority. In
the conclusion of his opinion, the Chief Justice said: "In every view
of the subject, therefore, this court has no jurisdiction of the case,
and the writ of error must on that ground be dismissed."
In the case of Spencer _v._ Negro Dennis, (8 Gill's Rep., 321,) the
court say: "Once free, and always free, is the maxim of Maryland law
upon the subject. Freedom having once vested, by no compact between
the master and the 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 Constitution of Illinois, the ordinance of 1787, or the Missouri
compromise act of 1820. The court treated these acts as in force, and
held itself bound to execute them, by declaring the slave to be free
who had acquired a domicil under them with the consent of his master.
The late decision reversed this whole line of adjudication, and held
that neither the Constitution and laws of the States, nor acts of
Congress in relation to Territories, could be judicially noticed by
the Supreme Court of Missouri. This is believed to be in conflict with
the decisions of all the courts in the Southern States, with some
exceptions of recent cases.
In Marie Louise _v._ Morat et al., (9 Louisiana Rep., 475,)
[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
emancipation; and that, where a slave thus becomes free, the master
cannot reduce him again to slavery.
Josephine _v._ Poultney, (Louisiana Annual Rep., 329,) "where the
owner removes with a slave into a State in which slavery is
prohibited, with the intention of residing there, the slave will be
thereby emancipated, and their subsequent return to the State of
Louisiana cannot restore the relation of master and slave." To the
same import are the cases of Smith _v._ Smith, (13 Louisiana Rep.,
441; Thomas _v._ Generis, Louisiana Rep., 483; Harry et al. _v._
Decker and Hopkins, Walker's Mississippi Rep., 36.) It was held that,
"slaves within the jurisdiction of the Northwestern Territory became
freemen by virtue of the ordinance of 1787, and can assert their claim
to freedom in the courts of Mississippi." (Griffith _v._ Fanny, 1
Virginia Rep., 143.) It was decided that a negro held in servitude in
Ohio, under a deed executed in Virginia, is entitled to freedom by the
Constitution of Ohio.
The case of Rhodes _v._ Bell (2 Howard, 307; 15 Curtis, 152) involved
the main principle in the case before us. A person residing in
Washington city purchased a slave in Alexandria, and brought him to
Washington. Washington continued under the law of Maryland, Alexandria
under the law of Virginia. The act of Maryland of November, 1796, (2
Maxcy's Laws, 351,) declared any one who shall bring any negro,
mulatto or other slave, into Maryland, such slave should be free. The
above slave, by reason of his being brought into Washington city, was
declared by this court to be free. This, it appears to me, is a much
stronger case against the slave than the facts in the case of Scott.
In Bush _v._ White, (3 Monroe, 104,) the court say:
"That the ordinance was paramount to the Territorial laws, and
restrained the legislative power there as effectually as a
Constitution in an organized State. It was a public act of the
Legislature of the Union, and a part of the supreme law of the land;
and, as such, this court is as much bound to take notice of it as it
can be of any other law."
In the case of Rankin _v._ Lydia, before cited, Judge Mills, speaking
for the Court of Appeals of Kentucky, says:
"If, by the positive provision in our code, we can and must hold our
slaves in the one case, and statutory provisions equally positive
decide against that right in the other, and liberate the slave, he
must, by an authority equally imperious, be declared free. Every
argument which supports the right of the master on one side, based
upon the force of written law, must be equally conclusive in favor of
the slave, when he can point out in the statute the clause which
secures his freedom."
And he further said:
"Free people of color in all the States are, it is believed, quasi
citizens, or, at least, denizens. Although none of the States may
allow them the privilege of office and suffrage, yet all other civil
and conventional rights are secured to them; at least, such rights
were evidently secured to them by the ordinance in question for the
government of Indiana. If these rights are vested in that or any other
portion of the United States, can it be compatible with the spirit of
our confederated Government to deny their existence in any other part?
Is there less comity existing between State and State, or State and
Territory, than exists between the despotic Governments of Europe?"
These are the words of a learned and great judge, born and educated in
a slave State.
I now come to inquire, under the sixth and last head, "whether the
decisions of the Supreme Court of Missouri, on the question before us,
are binding on this court."
While we respect the learning and high intelligence of the State
courts, and consider their decisions, with others, as authority, we
follow them only where they give a construction to the State statutes.
On this head, I consider myself fortunate in being able to turn to the
decision of this court, given by Mr. Justice Grier, in Pease _v._
Peck, a case from the State of Michigan, (18 Howard, 589,) decided in
December term, 1855. Speaking for the court, Judge Grier said:
"We entertain the highest respect for that learned court, (the Supreme
Court of Michigan) and in any question affecting the construction of
their own laws, where we entertain any doubt, would be glad to be
relieved from doubt and responsibility by reposing on their decision.
There are, it is true, many dicta to be found in our decisions,
averring that the courts of the United States are bound to follow the
decisions of the State courts on the construction of their own laws.
But although this may be correct, yet a rather strong expression of a
general rule, it cannot be received as the annunciation of a maxim of
universal application. Accordingly, our reports furnish many cases of
exceptions to it. In all cases where there is a settled construction
of the laws of a State, by its highest judicature established by
admitted precedent, it is the practice of the courts of the United
States to receive and adopt it, without criticism or further inquiry.
When the decisions of the State court are not consistent, we do not
feel bound to follow the last, if it is contrary to our own
convictions; and much more is this the case where, after a long course
of consistent decisions, some new light suddenly springs up, or an
excited public opinion has elicited new doctrines subversive of former
safe precedent."
These words, it appears to me, have a stronger application to the case
before us than they had to the cause in which they were spoken as the
opinion of this court; and I regret that they do not seem to be as
fresh in the recollection of some of my brethren as in my own. For
twenty-eight years, the decisions of the Supreme Court of Missouri
were consistent on all the points made in this case. But this
consistent course was suddenly terminated, whether by some new light
suddenly springing up, or an excited public opinion, or both, it is
not necessary to say. In the case of Scott _v._ Emerson, in 1852,
they were overturned and repudiated.
This, then, is the very case in which seven of my brethren declared
they would not follow the last decision. On this authority I may well
repose. I can desire no other or better basis.
But there is another ground which I deem conclusive, and which I will
re-state.
The Supreme Court of Missouri refused to notice the act of Congress or
the Constitution of Illinois, under which Dred Scott, his wife and
children, claimed that they are entitled to freedom.
This being rejected by the Missouri court, there was no case before
it, or least it was a case with only one side. And this is the case
which, in the opinion of this court, we are bound to follow. The
Missouri court disregards the express provisions of an act of Congress
and the Constitution of a sovereign State, both of which laws for
twenty-eight years it had not only regarded, but carried into effect.
If a State court may do this, on a question involving the liberty of a
human being, what protection do the laws afford? So far from this
being a Missouri question, it is a question, as it would seem, within
the twenty-fifth section of the judiciary act, where a right to
freedom being set up under the act of Congress, and the decision being
against such right, it may be brought for revision before this court,
from the Supreme Court of Missouri.
I think the judgment of the court below should be reversed.
* * * * *
Mr. Justice CURTIS dissenting.
I dissent from the opinion pronounced by the Chief Justice, and from
the judgment which the majority of the court think it proper to render
in this case. The plaintiff alleged, in his declaration, that he was a
citizen of the State of Missouri, and that the defendant was a citizen
of the State of New York. It is not doubted that it was necessary to
make each of these allegations, to sustain the jurisdiction of the
Circuit Court. The defendant denied, by a plea to the jurisdiction,
either sufficient or insufficient, that the plaintiff was a citizen of
the State of Missouri. The plaintiff demurred to that plea. The
Circuit Court adjudged the plea insufficient, and the first question
for our consideration is, whether the sufficiency of that plea is
before this court for judgment, upon this writ of error. The part of
the judicial power of the United States, conferred by Congress on the
Circuit Courts, being limited to certain described cases and
controversies, the question whether a particular case is within the
cognizance of a Circuit Court, may be raised by a plea to the
jurisdiction of such court. When that question has been raised, the
Circuit Court must, in the first instance, pass upon and determine it.
Whether its determination be final, or subject to review by this
appellate court, must depend upon the will of Congress; upon which
body the Constitution has conferred the power, with certain
restrictions, to establish inferior courts, to determine their
jurisdiction, and to regulate the appellate power of this court. The
twenty-second section of the judiciary act of 1789, which allows a
writ of error from final judgments of Circuit Courts, provides that
there shall be no reversal in this court, on such writ of error, for
error in ruling any plea in abatement, _other than a plea to the
jurisdiction of the court_. Accordingly it has been held, from the
origin of the court to the present day, that Circuit Courts have not
been made by Congress the final judges of their own jurisdiction in
civil cases. And that when a record comes here upon a writ of error or
appeal, and, on its inspection, it appears to this court that the
Circuit Court had not jurisdiction, its judgment must be reversed, and
the cause remanded, to be dismissed for want of jurisdiction.
It is alleged by the defendant in error, in this case, that the plea
to the jurisdiction was a sufficient plea; that it shows, on
inspection of its allegations, confessed by the demurrer, that the
plaintiff was not a citizen of the State of Missouri; that upon this
record, it must appear to this court that the case was not within the
judicial power of the United States, as defined and granted by the
Constitution, because it was not a suit by a citizen of one State
against a citizen of another State.
To this it is answered, first, that the defendant, by pleading over,
after the plea to the jurisdiction was adjudged insufficient, finally
waived all benefit of that plea.