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§ 969. Until the decision of the Missouri court in Dred Scott v. Emerson, 15 Missouri, 576,' the courts of the slaveholding States supported with great uniformity the doctrines, that he is not to be deemed free, in the State in which he had been held as a slave, who returns to it or is brought back from a free State into which he had been taken or sent on a bona fide visit or temporary sojourn by his owner or master; and, on the other hand, that he is to be deemed free in the slaveholding State who returns or is brought back from a free State into which he had been carried or sent, either to reside there animo morandi, or to be hired out there for the master's benefit with intent to evade the State law prohibiting slavery or the introduction of slaves."

The cases undoubtedly exhibit varieties of opinion as to what residence on the part of the slave in the non-slaveholding jurisdiction shall, in the slaveholding forum, on his return, be regarded as sufficient to give him a domicil, in the former, upon which a status of freedom may accrue to him which can be recognized under the customary rules of private international law."

that, by the law as generally received in the slaveholding States, such temporary visits would not have been considered as changing his condition in Kentucky. 1 Affirmed in 15 Missouri, 595, and 17 ib., 434.

2 It is unnecessary to classify the cases as supporting one or the other of the doctrines above stated. The two classes of cases incidentally confirm each other. See Virginia cases: Griffith v. Fanny, Gilmer, 144; Lewis v. Fullerton, 1 Randolph, 15; Hunter v. Fulcher, 1 Leigh, 172; Betty v. Horton, 5 Leigh, 615; Commonw. v. Pleasant, 10 Leigh, 697. Maryland cases: Mahoney v. Ashton, 4 Har. & McHenry, 295-325; David v. Porter, 4 Har. & McHenry, 418; Stewart v. Oakes, 5 Har. & Johnson, 107, note. Kentucky cases: Rankin v. Lydia, 2 A. K. Marshall, 467; Bush's Rep. v. White, 3 Monroe, 104; Graham v. Strader, 5 B. Monroe, 181; Strader v. Graham, 7 ib., 635; Davis v. Tingle, 8 ib., 545; Collins v. America, 9 ib., 565; Mercer v. Gilman, 11 ib., 211; Maria v. Kirby, 12 ib., 542; Ferry v. Street, 14 ib., 358. A South Carolina case: Guillemette v. Harper, 4 Rich., 187. Louisiana cases: Lunsford v. Coquillon, 14 Martin, 401; Louis v. Cabarrus, 7 La., 170; Marie Louise v. Marot, 8 La., 479; Frank v. Powell, 11 La., 499; Priscilla Smith v. Smith, 13 La., 445; Elizabeth Thomas v. Generis, 16 La., 483; Josephine v. Poultney, 1 La. Ann., 322; Arsene v. Pigneguy, 2 ib., 620; Liza v. Puissant, 7 ib., 80. The alteration of the rule by the Legislature, in 1846, is noticed in Eugenie v. Preval, 2 La. Ann., 180; Conant v. Guisnard, ib., 696. Missouri cases: Winny . Whitesides, 1 Missouri, 472; La Grange v. Chouteau, 2 ib., 19; Milly v. Smith, 2 ib., 36; Ralph v. Duncan, 3 ib., 195; Julia v. McKinney, 3 ib., 270; Nat v. Ruddle, 3 ib., 400; Rachel v. Walker, 4 ib., 350; Wilson v. Melvin, 4 ib., 592; Vaughan v. Williams, 3 McLean, 530; Robert v. Melugen, 9 Missouri, 169, and the dissenting opinion of Gamble, Ch. J., in Dred Scott v. Emerson, 15 Missouri, 576.

3

Ante, §§ 54, 121, 320: In Mahoney v. Ashton (1799), 4 Har. & McHen., 295–

Domicil is a topic which it is difficult to bring within fixed rules.' It may be supposed that some intention on the part of the slave to acquire free status under the law of the non-slaveholding State should appear, in order that he should be regarded as free on revisiting the forum in which he had been a slave. In instances where the stay of master and slave has been protracted, and, to all appearance, in view of residence, it seems difficult to recognize the slavery on the return, though the slave may have continued to serve voluntarily, without assuming that slavery has existed during the interval in a State where there was no law to support it. On the other hand, it may be equally unreasonable to recognize a status of freedom as acquired by any assertion of liberty during a very brief stay in the State whose law accords it.

The instances which most occasion doubt seem to be those in which, on the occasion of bona fide visit, transit, or temporary residence in a non-slaveholding State, the slave has claimed his freedom and it has been judicially awarded to him by a court of such State. The courts of the slaveholding States are generally unwilling to recognize the party as free on returning to the jurisdiction in which he had been held as a slave.'

§ 970. In the case of Dred Scott v. Emerson, 15 Missouri (1852), 576, the Supreme Court of Missouri avowedly aban

325, the claim for freedom was based on the fact that the petitioner's ancestor had been taken from Barbados to England and brought thence to Maryland between the years 1678 and 1681. The decision against the claim is based on the idea that a slave did not become a free person at that time in England, and also that the Maryland statute of 1715 would have re-established a condition of slavery. The arguments and opinions show the conflict of opinion as to the law of England, as expounded in the then recent case of Somerset.

'Phillimore on Domicil, 15.

2

Compare ante, § 320. In Commonwealth v. Aves, 18 Pick., 218, Judge Shaw said: "From the principle above stated, on which a slave brought here becomes free, to wit, that he becomes entitled to the protection of our laws, it would seem to follow, as a necessary conclusion, that if the slave waives the protection of those laws and returns to the State where he is held as a slave, his condition is not changed." See also the distinction made, and cases noted, by Curtis, J., 19 How., 591, 592. Also President Tucker's Opinion in Betty v. Horton, ante, p. 28, note. m Calvert v. Steamboat Timoleon, 15 Missouri, 596.

Jaquin, 5 Har. & Johns., 100, 109; Lewis v. Fullerton, 1 Rand., 15; 12 B. Monroe, 549. The slave having been carried out of the e, in order to effect emancipation, contrary to the law of the recognized in Hinds v. Brazealle, 2 How. Mississippi, 837; Shaw 246; Mary v. Brown, 5 La. Ann., 269.

doned the customary rule of international private law as declared in the earlier decisions of the same court. The ground on which this decision was made is especially to be noticed as exhibiting the unjuridical character of that doctrine of judicial comity, or of the comity of the nation or state applied by its courts, which in the second chapter of this work has been presented as contrary to all sound views of international law.

The essential facts in the case were, that Dr. Emerson, a surgeon in the army of the United States, during his continuance in the service was stationed at Rock Island, a military post in the State of Illinois, and at Fort Snelling, also a military post in the territory of the United States, north of the northern line of the State of Missouri; at both of these places Scott continued in the service of Dr. Emerson-at one place from the year 1834 until April or May, 1836, at the other from the period last mentioned until the year 1838.

The Missouri court, in this case, regarded the owner of the slave as having, for the purposes of this case, resided in a nonslaveholding jurisdiction animo morandi, and they admitted, or at least did not deny, that the rule of international private law, as gathered from their own previous decisions, declared the plaintiff free in Missouri.

But the majority of the court' thought themselves at liberty

1 Scott (a man of color) v. Emerson (1852), 15 Missouri, 576. Caption: "The voluntary removal of a slave by his master to a State, territory, or county in which slavery is prohibited, with a view to residence there, does not entitle the slave to sue for his freedom in the courts of this State." Held by Judges Scott and Ryland. Chief Justice Gamble dissented. In the opinion delivered by Judge Scott (ib. 584), he held that, by recognizing the plaintiff as a freeman, the Missouri court would be enforcing the law of another State or jurisdiction. "It is a humiliating spectacle to see the courts of a State confiscating the property of her own citizens by the command of a foreign law. If Scott is freed, by what means will it be effected but by the constitution of the State of Illinois or the territorial laws of the United States? Are not those governments capable of enforcing their own laws? and, if they are not, are we concerned that such laws shall be enforced, and that, too, at the cost of our own citizens ?" Then, referring to the law of the nonslaveholding States: " Now, are we prepared to say that we shall suffer those laws to be enforced in our courts?"

On the doctrine of comity Judge Scott has the following (ib., p. 586): “An attempt has been made to show that the comity extended to the laws of other States is a matter of discretion, to be determined by the courts of that State in which the laws are proposed to be enforced. If it is a matter of discretion, that discretion must be controlled by circumstances. Times now 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

to adopt, as a rule for this particular case, that which they conceived the State of Missouri ought to adopt in such matters, at that time, in view of certain considerations of comity, or want of comity, in respect to certain other States-not the State or jurisdiction in which the plaintiff had resided in particular, but the non-slaveholding States of the Union generally -as having been wanting in comity in respect to certain States-not the State of Missouri in particular, but the slaveholding States of the Union generally.' In view of the "spirit in relation to slavery" exhibited in some States not named (but being, it may be supposed, States on the eastern seaboard, since they, or the ancestors of their present inhabitants, are charged with having introduced slavery into the continent, if not into the Louisiana Territory specifically), the court refused to recognize the status conferred upon the negro, Dred Scott, by the law of Congress in an adjacent Territory of the United States west of the Mississippi, or by the law of the adjacent State of Illinois.

971. The case of Dred Scott v. Sandford, instituted in the United States Circuit Court, and brought up (from the judgment of that court sustaining the demurrer to the plea in abatement that the plaintiff was not a citizen of Missouri, because a negro of African descent) by writ of error to the Supreme Court of the United States, arose on the same facts. 19 How., 396, 453.

The Opinions in this case on the question whether a negro can be a citizen of one of the United States, in view of the first clause of the second section of the fourth Article, have been considered in a former chapter. This question has been distinguished from that of the capacity of a negro to be a party

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. Although we may, for our own sakes, regret that the avarice and hard-heartedness of the progenitors of those who are now so sensitive on the subject ever introduced the institution among us, yet we will not go to them to learn law, morality, or religion on the subject."

On the question how, in applying the doctrine of comity as ordinarily received, the comity of the State or the policy of the State is to be judicially ascertained in cases of this class, see Mitchell v. Wells, 37 Mississippi, 235, 257.

to a suit coming within the judicial power of the United States, which has been noticed in another place.' But, in view of the proposition that the plaintiff could not sue as a citizen of Missouri because he was a slave by the law of that State, the question of his status under the law of that State was examinable under the issue on the plea in abatement.

In the Opinion delivered as that of the court, on concluding that the prohibition of slavery in the territory north and west of Missouri was inoperative, 19 How., 452, immediately after the portion cited ante, vol. I., p. 530, Chief Justice Taney adds: "and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory, even if they had been carried there by the owner with the intention. of becoming a permanent resident." The Chief Justice next very briefly examines the question whether, "as contended on the part of the plaintiff, he is made free by being taken to Rock Island, in the State of Illinois, independently of his residence in the territory of the United States, and, being so made free, he was not again reduced to a state of slavery by being brought back to Missouri." Judge Taney refers to Strader v. Graham, 10 How., 82-" that this court had no jurisdiction to revise the judgment of a State court upon its own laws"-as authority for saying: "So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status, as free or slave, depended on the laws of Missouri, and not of Illinois. It has, however, been urged in the argument that, by the laws of Missouri, he was free on his return, and that this case, therefore, cannot be governed by the case of Strader et al. v. Graham, where it appeared, by the laws of Kentucky, that the plaintiffs continued to be slaves on their return from Ohio.' But whatever doubts or opinions may, at one time, have been entertained upon this subject, we are sat

1 Ante, § 372.

Here the Chief Justice seems to intimate that the Supreme Court had, in Strader v. Graham, not only accepted the decision of the Kentucky court as the exposition of Kentucky law, but also made the rule of Kentucky law a general rule, applicable in Missouri and other States.

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