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

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 ascer tained 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.

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."

2 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 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.

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.)"