isfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled, by the decisions of the highest court in the State, that Scott and his family, upon their return, were not free, but were, by the laws of Missouri, the property of the defendant; and that the Circuit Court of the United States had no jurisdiction, when, by the laws of the State, the plaintiff was a slave, and not a citizen."!

The judge proceeds to argue that the decision of the State court on the question of the status of these particular parties must be conclusive on the Supreme Court, even if erroneous, unless brought up before it for correction on writ of error.

972. Mr. Justice Nelson delivered an Opinion, in which he exclusively considered this question of international law as the only one material to the determination of the case."

Judge Nelson, ib. 458, thus states the question: "Whether or not the removal of the plaintiff, who was a slave, with his master, from the State of Missouri to the State of Illinois, with a view to a temporary residence, and, after such a residence and return to the slave State, such residence in the free State works an emancipation." Taking this view of the question of residence, Judge Nelson could regard' the decision of the State

In the syllabus of the report, drawn, it is said, by the Chief Justice, isV., 2" It has been settled by the decisions of the highest court in Missouri that, by the laws of that State, a slave does not become entitled to his freedom, where the owner takes him to reside in a State where slavery is not permitted, and afterwards brings him back to Missouri."

It is remarkable that though, in the opening sentence, Judge Nelson spoke in the first person singular, he employed the plural throughout in the residue. Among the other Opinions, the plural is employed only in that delivered by the Chief Justice. May it be surmised that this Opinion was prepared to be delivered as the Opinion of the court? The judgment of the court might have been sustained on the grounds taken in this Opinion. In view of a state of public feeling attributable, in a great degree, to the doctrines expressed, on other points, in the Opinion delivered by the Chief Justice, it may be regretted that Judge Nelson's was not adopted as the exponent of the court.

3 Ib. 466. 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

court as conforming to the State law derived from the earlier cases. Judge Nelson (19 How., 465) spoke of the State court as having, in like manner, "placed the decision upon the temporary residence of the master "-a view which does not seem justified by the language of the Opinions in Dred Scott v. Emerson; but, noticing the allegation that that decision was contrary to earlier cases in the same State, he concluded that, even if contrary to those cases, the decision in the particular case was to be taken as the best exponent of the existing law.

But, waiving the benefit of this ground, Judge Nelson justified the decision of the State court as in conformity with the then existing law. In his argument, the judge illustrates the mistake, so often made in cases of this international character, of supposing that the decisions of other States and other countries may be followed in such cases by the courts of any one State, though the earlier decisions of the same State should afford a contrary rule of decision. Judge Nelson refers to a Missouri case as being directly contrary (probably Rachel v.

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.)"

"The State of Louisiana, whose courts had gone further in holding the slave free on his return from a residence in a free State than the courts of her sister States, has settled the law, by an act of her Legislature, in conformity with the law of the court of Missouri in the case before us. (Sess. Law, 1846.)"

Walker, in 1836, 4 Missouri, 350, in which it was decided that a slave carried by her owner, an officer in the army, to his station in the Northwest Territory, was to be held free on returning to Missouri); yet he justifies the decision in Dred Scott v. Emerson as agreeing with certain cases in "the States bordering on the free," and with the decision of Lord Stowell. Why the cases in States not so bordering should be excluded in the deduction of a general rule, does not appear. It may be questioned whether even the cases cited will support the doctrine that a residence, like that of the parties in this case, in a jurisdiction wherein all persons are regarded as free, will not cause the slave to be recognized as free on returning to the slave State. It may be very confidently asserted that the doctrine is not maintained by the numerous other cases which have here been cited. Judge Nelson also refers to the statute of Louisiana. But this is only additional proof that the common or unwritten law was to the contrary; and it was a rule of this character, if any, which was to be gathered from the jurisprudence of the other slaveholding States. Has a statute of Louisiana power to change the common law of Missouri?

Mr. Justice Grier said (ib., 469), "I concur in the Opinion delivered by Mr. Justice Nelson on the questions discussed by him."

§ 973. Mr. Justice Daniel, in his brief examination of this question of international law (ib., 483-487), argues as if the point were, whether the law of the State of Missouri should be supplanted by the law of some other jurisdiction as having intrinsic force in that State; and, holding that the law determining the rights of the parties as inhabitants of Missouri must rest solely on the juridical will of that State, at once concludes that the law of Missouri did not recognize the right of freedom given in the non-slaveholding jurisdiction. The argument is imperfect. There could be no question that the rule for this case was part of the law of Missouri; but then it remained to determine what that law was. Judge Daniel, without giving any attention to the earlier decisions of Missouri courts, relies upon Lord Stowell's decision in the case

of the slave Grace, and on the early Virginia case, Lewis . Fullerton.'

§ 974. Mr. Justice Campbell's Opinion bearing on this point is substantially like Judge Nelson's. He states the question, ib., 494, as being, "whether the manumission of the slave is effected by his removal, with the consent of the master, to a community where the law of slavery does not exist, in a case where neither the master nor slave discloses a purpose to remain permanently, and where both parties have continued to maintain their existing relations. What is the law of Missouri in such a case?" Judge Campbell then cites several decisions, miscellaneously, of different States, including Missouri. He says, ib., 495, "absence in the performance of military duty, without more, is a fact of no importance in determining a question of change of domicil." Thus, holding that the parties never had any other domicil than Missouri, Judge Campbell applies the general rule and decides that the plaintiffs were not free by the law of Missouri."

Mr. Justice Catron did not examine this point of the case in his Opinion.

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In this case the main question was, whether a contract, made in Ohio, for emancipation to be executed in Virginia could be enforced, when not in conformity with the Virginia law of emancipation. Lord Stowell's judgment in Ex parte Grace, 2 Hagg. Adm., 94, is so constantly cited in these cases that its real bearing should be noticed. The woman was seized by the customs-officer at Antigua, in 1825, as forfeited to the King on suggestion of having been illegally imported in 1823," when she returned from England, with the mistress whom she had accompanied thither in 1822. Her former owner simply denied that she was a slave so illegally imported. The allegation in the 5th count, that she was brought in as a free person, and Lord Stowell's unfounded assumption that she had appealed to the law (ib., 99, 100), were contradictory to the libel. If the woman came back a free person, she was not imported as a slave. Supposing her to have been a slave, the question was whether, under the circumstances, she was imported in violation of any statute? The colonial court and Lord Stowell decided that she was not; decreeing "that she be restored to the claimant, with costs and damages for her detention." As between the woman and the claimant in this case, her status could not be decided by this judgment. (An American case very similar is U. S. v. The Garronne, &c., 7 Peters, 72.)

2 After this conclusion Judge Campbell, ib., 495–500, controverts the general rule of international private law as to the non-continuance of slavery in these cases in the non-slaveholding jurisdiction, as exhibited in Somerset's case, the European authorities, and the decisions of the free States (ante, § 308), and seems to maintain that the status of slavery continues in the non-slaveholding forum at the option of the master, until he may choose to adopt a permanent domicil. (Compare ante, § 530.)

§ 975. Justices McLean and Curtis dissented on this question from the Opinion of the Court.

Judge McLean, in his Opinion, under the fifth head (ib., 557-563), reviewed the cases and held that the decision of the Missouri court was contrary to the law of that State as exhibited in its earlier decisions, as well as to the general rule deducible from the decisions in other States. He further held (ib., 563) that the Supreme Court might reverse a decision of a State court founded on an erroneous exposition of the law of the State.'

§ 976. Mr. Justice Curtis' examined this question at much length (ib., 594-604), holding that Dr. Emerson had such a residence in the Wisconsin Territory as was sufficient to give a status of freedom to the plaintiff, Dred Scott; that Emerson had allowed him to contract marriage with the woman whom he had also brought there, and had thereby recognized their capacity to contract, to sustain the obligations of husband and wife, while the child born to them there could have no other domicil; that the Missouri court had recognized the sufficiency of the facts in the case to confer freedom in the non-slaveholding forum, and had not, as was supposed by Judges Taney, Nelson, and Campbell, regarded the plaintiffs as only temporarily located in such jurisdiction; that the judgment of the State court was confessedly contrary to the law of Missouri and the general international private law as derived from the decisions, and that in such case it was competent for the Supreme Court of the United States to overrule it.

Judge McLean (ib., 558, 559) objected to the decision of the Missouri court as derogatory to the independent power of the State of Illinois in respect to the status of persons. Such considerations are founded on a misapprehension of the nature of international private law very similar to that exhibited in the language of the Missouri court. The misconception is intimately connected with the fatal notion that the States are capable of relations towards each other under international public law, and this again is derived from the false idea of State sovereignty.

19 Howard, 594: "But it is a distinct question, whether the law of Missouri recognized and allowed effect to the change wrought in the status of the plaintiff, by force of the laws of the Territory of Wisconsin.

"I say the law of Missouri, because a judicial tribunal, in one state or nation, can recognize personal rights acquired by force of the law of any other state or nation, only so far as it is the law of the former state that those rights should be recognized. But, in the absence of positive law to the contrary, the will of every civilized state must be presumed to be to allow such effect to foreign laws as is in