Scott v. Emerson

15 Mo. 576 | Mo. | 1852

Lead Opinion

Scott, J.,

delivered the opinion of the court.

This was an action instituted by Dred Scott against Irone Emerson, the wife and administratrix of-Dr. John Emerson, to try his right to freedom. His claim is based upon the fact that his late master held him in servitude in the State of Illinois, and also in that territory ceded by I’rance to the United States, under the name of Louisiana, which lies north of 38 degrees 30 minutes, north latitude, not included within the limits of the State of Missouri.

It appears that his late master was a surgeon in the army of the United States, and 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, above described, at both of which places S,cott was detained in servitude — 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 jury was instructed, in effect, that if such were the facts, they would find for Scott. He, accordingly, obtained a verdict.

The defendant moved for a new trial on the ground of misdirection by the court, which being denied to her, she sued out this writ of error.

Cases of this kind are not strangers in our courts. 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 was prohibited. From the first case decided in our courts, 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 is 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. The State3 of this Union, although associated for some purposes of government, yet, in relation to their municipal concerns have always been regarded as foreign to each other. The law of descents of one State is not regarded in another, in the distribution of the estates of deceased persons. So of the law of wills, administrations, judicial proceedings, and all 'other matters of mere internal police. The courts of one State do not take judicial notice of the laws of other States. They, when it is necessary to be shown what they are, must be proved like other facts. So of the laws of the United States, enacted for the mere purpose of governing a territory. These laws have no force in the States of the Union, they are local, and relate to the municipal affairs of the territory. Their effect is confined within its limits, and beyond those limits they have no more effect, in any State, than the municipal laws of one State would have in any other State: State of Virginia acts; Cohen’s 6 Wheat. This doctrine is declared and maintained, not only with respect to nations strictly foreign to each'other, but also to the several States of this Union. Every State has the right of determining how far, in a spirit of comity, it will respect the laws of other States. Those laws have no intrinsic right to be enforced beyond the limits of the State for which they were enacted. The respect allowed them will depend altogether on their conformity to the policy of our institutions. No State is bound to carry into effect enactments conceived in a spirit hostile to that which pervades her own laws. In the Conflict of Laws, sec. 36, it is said: “but of the nature, and, extent and utility of this recognition of foreign laws, respecting the state and condition of persons, every nation must judge for itself, and certainly, is not bound to recognize them, when they would be prejudicial to their own interests. It is, in the strictest sense a matter of the comity of nations, and not of any absolute paramount obligation, superseding all discretion on the subject.” So in sec. 32, it is said, “it is difficult to conceive, upon what ground a claim can be vested, to give any municipal laws an extra territorial effect, when those laws are prejudicial to the rights of other nations or to those of their subjects; it would at once annihilate the sovereignty and equality of every nation, which should be called upon to recognize and enforce them, or compel it to desert its own proper interests and duty to its own subjects in tavor of strangers, who were regardless of both. A claim so naked of any principle or just authority to support it, is wholly inadmissible.”

Again, “the comity of nations is derived altogether from the voluntary consent of the state by which it is shown, and is inadmissible, when it is contrary to its known policy or prejudicial to its interests. In the silence of the positive rule, affirming or denying or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy or prejudicial to its interest.” sec. 38. 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? Now, what principle requires the interference of this court? Are not those governments capable of enforcing their own laws; and if they are not, are we concerned that such laws should be enforced, and that, too, at the cost of our own citizens? — States, in which an absolute prohibition of slavery prevails, maintain that if a slave, witli the consent of his master, touch their soil he thereby becomes free. The prohibition in the act, commonly called the Missouri Compromise, is absolute. How is that to be interpreted That act prevails along our entire western boundary; if our courts take upon themselves the task of enforcing the laws of other States, it is nothing but reasonable that they should take them as they are understood where they are promulgated. If a slave passes our western boundary, by the order of his master, and goes into the territory subject to the Missouri Compromise, does he thereby become free? Most of the courts of this Union would say that he does, if his freedom is sought to be recovered under the laws of that territory. If ou.r courts undertake-the task of enforcing that act, should they not take it as most of the other States would? Some of our old cases say, that a hiring for two days would be a violation of the constitution of Illinois and entitle the slave to his freedom. If two days would do, why not one? Is there any difference in principle or morality between holding a slavé in a free territory two days more than one day? and if one day, why not six hours? The old cases say, the intent is nothing, the act is the thing.

Now are we prepared to say, that we shall suffer these laws to be enforced in our courts? On almost three sides the State of Missouri is surrounded by free soil. If one of our slaves touch that soil with his master’s assent, he becomes entitled to his freedom. Considering the numberless instances in which those living along an extreme frontier would have occasion to occupy their slaves beyond our boundary, how hard would it be if our courts should liberate all the slaves who should thus be employed. How unreasonable to ask it. If a master sends his slave to hunt his horses or cattle beyond the boundary, shall he thereby be liberated? But our courts, it is said, will not go so far. If not go the entire length, why go at all? The obligation to enforce to the proper degree, is as obligatory as to enforce to any degree. Slavery is introduced by a continuance in the territory for six hours as well as for twelve months, and so far as our laws are concerned, the offence is as great in the one case as in the other. Laws operate only within the territory of the State for which they are made, and by enforcing them here, we, contrary to all principle, give them an extraterritorial effect. Chancellor Kent says: “A statute, though not in the nature of a judicial proceeding, is, however, a record of the highest nature. But if a statute, though a matter of record, was to have the same effect in one State as in another, then one State would be dictating laws for another, and a fearful collision of jurisdiction would instantly follow. That construction is utterly inadmissible, while it is conceded to be a principle of public law, requisite for the safe intercourse and commerce of mankind, that acts, valid by the law of the State where they arise, are valid everywhere, it is at the same time, to be understood, that this principle relates only to civil acts founded on the volition of the parties, and not to such as proceed from the sovereign power. The force of the latter cannot be permitted to operate beyond the limits of the territory, without affecting the necessary independence of nations.” 2 Kent, 117, 8.

This language is used when speaking in reference to the legislation of other States of the Union. It is conceived, that there is no ground to presume or to impute any volition to Dr. Emerson, that his slave should have his freedom. He was ordered by superior authority to the posts where his slave was detained in servitude, and in obedience to that authority, he repaired to them with his servant, as he very naturally supposed he had a right to do. To construe this into an assent to his slave’s freedom would be doing violence to his acts. Nothing but a persuasion, that it is a duty to enforce the foreign law as though it was one of our own, could ever induce a court to put such a construction on his conduct. The present atitude of the parties to this suit is conclusive, as to an actual consent, and nothing but the foreign law or the aid derived from it, can raise an implied one. If the State of Missouri had prohibited slavery within her limits, and our courts were called upon to execute that law, some zeal might be tolerated in our efforts to execute it; but while slavery obtains here, there is no consideration which would warrant us in going such lengths against our own citizens, for having permitted their slaves to remain in the territory of a State where slavery is prohibited.

In States and Kingdoms in which slavery is the least countenanced, and where there is a constant struggle against its existence, it is admitted law, that if a slave accompanies his master to a country in which slavery is prohibited, and remains there a length of time, if during his continuance in such country there is no act of manumission decreed by its courts, and he afterwards returns to his master’s domicii, where. slavery prevails, he has no right to maintain a suit founded upon a claim of permanent freedom. This is the law of England, where it is said that her air is too pure for a slave to breathe in, and that no sooner does he touch her soil than his shackles fall from him. The ease of slave, Grace, 2 Haggard Adm’rl’ty Rep. 94. Story, in his conflict of laws, says, “it has been solemnly decided that the law of England abhors and will pot endure the existence of slavery within the nation, and consequently, so soon as a slave lands in England, he becomes ipso facto, a free man, and discharged from the state of servitude; and there is no doubt that the same principle pervades the common law of the nonslaveholding States in America: that is to say, foreign slaves would no longer be deemed such after their removal thither.” But he continues, £sit is a very different question how far the original state of slavery might re-attach upon the party, if he should return to the country by whose laws he was declared to be and was held as a slave:” .Sec. 95, 6. In the case of the commonwealth of Massachusetts vs. Ames, 18, Peck, Judge Shaw, although declining to give an express opinion upon this question, intimates .very clearly that if the slave returns to his former country where slavery obtains, his condition would not be changed. In the case of Graham vs. Strader, 5 Mon. 183, the court of Appeals in Kentucky held, that the owner of a slave, who resides in Kentucky, and who permits his slave to go to Ohio in charge of an agent for a temporary purpose, does not forfeit his right of property in such slave.

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 hut 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, t>o>- does she seek to share or divide it with others. Although we may, fir-ear 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.

As to the consequences of slavery, they are much more hurtful to the master than the slave. There is no comparison between the slave in the United States and the cruel, uncivilized negro in Africa. When the condition of our slaves is contrasted with the state of their miserable race in Africa; when their civilization, intelligence and instruction in religious truths are considered, and the means now employed to restore them to the country from which they have been torn, bearing with them the blessings of civilized life, we are almost persuaded, that the introduction of slavery amongst us was, in the providences of God, who makes the evil passions of men subservient to his own glory; a means of placing that unhappy race within the pale of civilized nations.

Judge Ryland concurring, the judgment will be reversed, and the cause remanded.

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Dissenting Opinion

Gamble, J.,

dissenting opinion.

As I am constrained to depart from the opinion given by a majority of the court, the questions involved in the case and the present condition of feeling in the Country, seem to require that I should state the grounds of the dissent.

In all ages, and in all countries in which slavery has existed, the slave has been regarded not merely as property, but also as a being capable of acquiring and holding certain rights, by the act of the master. He could acquire and enforce his right to freedom in modes recognized by the law of the country in which he dwelt.

. In the early English law, where there existed a species of slavery, known as villenage, the villain might be emancipated by his lord, either directly by deed, or by implication of law, from some act of the master recognizing him as a freeman, as by making to him an obligation for a sum of money, or conveying lands to him, or by impleading him in an action. This appears, as well by the text of Littleton as by the commentary of Lord Coke, 1 Just. 137 A. & B. By the Spanish law, 1. Partictus 587, the mode in which a master may emancipate his slave is prescribed; and at page 589 certain meritorious actions are mentioned, which, when performed by a slave, authorize his emancipation even against the will of his master. In Justinian’s Institutes, Liber 1 Lit. 5 Sec. 1, it is declared, that “manumission is eftected in various ways, either in the face of the church, according to .he imperial constitutions, or in the presence of friends, or by letter, or by testament, or by any other last will. Liberty may also be conferred upon a slave by divers other methods, some of which were introduced by former laws, and other* by our own.”

In every slaveholding State in the Union, the subject of emancipation is regulated by statute, and the forms are prescibed 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 he 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 slave holding States, although the act of emancipation may not be in the form required by the laws of the State in which the court is sitting. Take, for example, an emancipation by will. If a master, residing and holding slaves in Missouri, should emancipate them by will, executed and proved, according to our laws, and the slaves thus emancipated, should, in the exercise of their freedom acknowledged and enjoyed here, emigrate to another slave State, where emancipation by will was not permitted, there is no person so ignorant as to suppose that they would lose their right to freedom by such change of residence. Decision of courts might be cited on this point, but it is not necessary to appeal to the tribunals for the maintainance of a principle so perfectly plain.

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, situate in our State, according to our own laws.

We, here, are the citizens of one nation, composed of many different States which are all equal, and are each and all entitled to manage their own domestic interests and institutions, by their own municipal law, except so far as the constitution of the United States interferes with that power. The perfect equality of the different States, lies at the foundation of the Union. As the institutions of slavery in the State*, 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, nor any .number of States claim the right to interfere with any other State, upon the question of admitting or excluding this institution. It must be borne in mind, that this freedom and equality of the different States, supposes that each can, of its own will, according to its own judgment, excludes slavery, with as little cause of offence to any of the other States, as if its decision was in favor of admitting it. As citizens of a slaveholding State, we have no right to complain of our neighbors of Illinois, because they introduce into their State constitution a prohibition of slavery; nor has any citizen of Missouri, who removes with his slave to Illinois, a right to complain that the fundamental law of the 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. Nor can any man pretend ignorance, that such is the design and effect of the constitutional provision. 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 voluntarily subjected himself and his property to a law, the operation of which he was bound to know. It would seem difficult to make any sound distinction between the effect of an emancipation produced by the act of the master, in thus voluntarily placing his slave under the operation of such a law, and that of an emancipation produced by the act of the master, by the execution of an instrument of writing in any State where the slave resided, which, according to the law of that State, would be sufficient to discharge the slave from servitude, although it might not be a valid emancipation under the laws of another State.

While I merely glance at the reasons which might be urged in support of the present plaintiff’s claim to freedom, if it were an original question, I do net propose to rest my dissent from the opinion given in this case, upon the original reasoning in support of the position.

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 decision, by which the law upon any other question was settled. There is with me, 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. It is, undoubtedly, a matter to be deeply regretted, that men who have no concern with the institution of slavery, should have claimed the right to interfere with the domestic relations of their neighbors, and have insisted that their ideas of philanthropy and morality should be adopted by people who are certainly capable of deciding upon their own duties and obligations. That the present owners of slaves, when denounced, in terms that .would be appropriate, if •they had actually kidnapped the slaves from the coast of Africa, or had inherited the fortunes accumulated by such iniquitous traffic, should feel exasperated by such wanton and unfounded attacks, is but natural. That, alienation of feeling and, finally, settled hostility will be produced by this course of conduct, is greatly to be apprehended. But, in the midst of all such excitement, it is proper that the judicial mind, calm and self balanced, should adhere to principles established when there was no feeling to disturb the view of the legal questions upon which the rights of parties depend.

In this State, it has been recognized, 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 : Winney vs. Whitesides, 1 Mo. Rep. 473; Le Grange vs. Chouteau, 2 Mo. Rep. 20; Milley vs: Smith, Ibid 36; Ralph vs. Duncan, 3 Mo. Rep. 194; Julia vs. McKinney, Ibid 270; Natt vs. Ruddle Ibid 400; Rachael vs. Walker, 4 Mo. Rep. 350; Wilson vs. Melvin, Ibid 592. These decisions, which come down to the year 1837 seem to have so fully settled the quetion, that since that time there has been no case bringing it before the court for any reconsideration until the present. In the .ease of Winney vs. Whitesides, the question was made in the argument “whether one nation would execute the penal Jaws of another,” and the court replied in this language: “Huberus, quoted in 4 Dallas 375 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. ' If this be the case .in countries altogether independent of each other, how much more in the case of a person removing from this common territory of all the States to one of the States. An adjudication on those rights, in the .country where they accrue, may be evidence of them, but.cannot give them. We are clearly of opinion, that if by a residence in Illinois, the plaintiff .in error lost her right to the property in defendant, that right was not revived by a removal of the parties to Missouri:”'

The principle thus settled, runs through all the cases subsequently decided, for tbéy.were. all cases in which, the right to freedom was claimed .in our courts, under a residence in a free State or territory, and where there had been no adjudication upon the right to freedom in such&tate or territory.

,But„thp .supremncanrt of Missouri,;so far from s.tandingnlone on this cqnMtioq, ;is; ^ported by ¿fee decisions; off «^re^thejr :sla'Ve. SMes, include ing those in which it may be supposed there was the least disposition to favor emancipation. In Lunsford vs. Coquellon, 2 Martin U. S. 401, the supreme court of Louisiana held, that the removal of a slave by his master from Kentucky to Ohio, with intention to reside there, ipso facto emancipates the slave. The same court, in Marie Louise vs. Marot and others, 9 L. R. 475, and in Smith vs. Smith, 13 L. R. 441 holds “that the fact of a slave being taken by the owners to the kingdom of France or other country, where slavery is not tolerated, operates upon the condition of the slave and produces immediate emancipation.” See, also, Thomas vs. Generis, L. R. 483; Josephine vs. Poultney, 1 Annual R. 329. The current of judicial authority in that State, was so uniform, that in 1846 an act was passed by the legislature which declared, that residence in a country where slavery is prohibited, shall not entitle the slave to freedom. Upon this statute, the supreme court in Eugene vs. Percival, 2 Annual R. 180 remarks, that it settles the law upon the subject, upon the principles laid down by Lord Stowell, in the -case of the slave, Grace, 2 Haggard’s Admiralty R. 94.

In Harry and others vs. Decker and Hopkins, Walker 36, the Supreme Court of Mississippi held, that any State may, by its constitution, prohibit slavery within its limits, and so may the legislature, when not restrained by the constitution; and that slaves within the limits of the north-west territory, became free by the ordinance of 1787, and may assert their rights in the courts of Mississippi.

In Griffith vs. Fanny, Gilmers R. 143, the court of Appeals of Virginia held, that a negro held in servitude in Ohio, was entitled to freedom under the constitution of Ohio.

Judge Mills, in delivering the opinion of the court of Appeals of Kentucky, in Rankin vs. Lydia, 2 A. K. Marsh. 468, maintained the right of a negro to freedom by reason of a residence in Indiana, and considers the question, whether the plaintiff’s claim to freedom-was of a penal character, because it accrued by the laws of another government, that would not be enforced in Kentucky. The opinion is one of ability, and maintains the right of the negro to assert her claim to freedom in the courts of Kentucky, although there was no actual enjoyment of freedom in Indiana. See, also, Bush’s Reps. vs. White and wife, 3 Monroe 104.

The cases here referred to, are cases decided when the public mind was tranquil, and when the tribunals maintained in their decisions, the .. principles which had always received the approbation of an enlightened ^public - opinion. - Times may have, changed, public feeling may bay.e ..-^hanged, hut ptjncipl.es bare not and do not change; and; in my judgment, there can be no safe basis for judicial decisions, but in those principles, which are: immutable.

it may be observed, that the principle is either expressly declared or tacitly admitted in all these cases, that where a right to freedom has been acquired, under the law of another State or commnnity, it may be enforced by action, in the courts of a slaveholding State; for, in every one of these cases, the party claiming freedom had not procured any adjudication upon his right in the country where it accrued.

This very brief examination of the questions involved in this case, will show the grounds upon which I hold it to be my duty to declare, that the voluntary removal of a slave, by his master, to a State, territory or country in which slavery is prohibited, with a view to a residence there, entitles the slave to his freedom, and that that right may be asserted by action in our courts under our laws.

So far as it may be claimed in this case, that there is any thing peculiar in the manner in which the slave was held in the free country, by reason of his master being an officer of the United States army, it ig sufficient to answer, that this court, in Rachael vs. Walker, 4 Mo. Reports 350, considered the effect of that circumstance, and decided that such officers were not authorized, any more than private individuals, to hold slaves, either in the north-west territory or in the territory west of the Mississippi and north of thirty-six degrees thirty minutes, north latitude. The act of Congress, called the Missouri Compromise, was, in that case, held as operative.as the ordinance of 1787.