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 v. 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.

1 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.)

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 plaintiff's 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.

1 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

The language of Judge Curtis, in the statement of general principles and of the conclusions afforded by their application to the facts of this case, is more in harmony with the views taken in the elementary portion of this work, than are the expressions employed by the other members of the court. The

accordance with the settled rules of international law. And legal tribunals are bound to act on this presumption. It may be assumed that the motive of the state in allowing such operation to foreign laws is what has been termed comity. But, as has justly been said (per Chief Justice Taney, 13 Pet., 589), it is the comity of the state, not of the court. The judges have nothing to do with the motive of the state. Their duty is simply to ascertain and give effect to its will. And when it is found by them that its will to depart from a rule of international law has not been manifested by the state, they are bound to assume that its will is to give effect to it. Undoubtedly, every sovereign state may refuse to recognize a change, wrought by the law of a foreign state, on the status of a person, while within such foreign state, even in cases where the rules of international law require that recognition. Its will to refuse such recognition may be manifested by what we term statute law, or by the customary law of the state. It is within the province of its judicial tribunals to inquire and adjudge whether it appears, from the statute or customary law of the state, to be the will of the state to refuse to recognize such changes of status by force of foreign law as the rules of the law of nations require to be recognized. But, in my opinion, it is not within the province of any judicial tribunal to refuse such recognition from any political considerations, or any view it may take of the exterior political relations between the state and one or more foreign states, or any impressions it may have that a change of foreign opinion and action on the subject of slavery may afford a reason why the state should change its own action. To understand and give just effect to such considerations, and to change the action of the state in consequence of them, are functions of diplomatists and legislators, not of judges.

"The inquiry to be made on this part of the case is, therefore, whether the State of Missouri has, by its statute, or its customary law, manifested its will to displace any rule of international law, applicable to a change of the status of a slave, by foreign law. I have not heard it suggested that there was any statute of the State of Missouri bearing on this question. The customary law of Missouri is the common law, introduced by statute in 1816. (1 Ter. Laws, 436.) And the common law, as Blackstone says (4 Com., 67), adopts, in its full extent, the law of nations, and holds it to be a part of the law of the land. I know of no sufficient warrant for declaring that any rule of international law, concerning the recognition, in that State, of a change of status, wrought by an extra-territorial law, has been displaced or varied by the will of the State of Missouri. I proceed then to inquire what the rules of international law prescribe concerning the change of status of the plaintiff wrought by the law of the Territory of Wisconsin.

"It is generally agreed by writers upon international law, and the rule has been judicially applied in a great number of cases, that wherever any question may arise concerning the status of a person, it must be determined according to that law which has next previously rightfully operated on and fixed that status. And, further, that the laws of a country do not rightfully operate upon and fix the status of persons who are within its limits in itinere, or who are abiding there for definite temporary purposes, as for health, curiosity, or occasional business; that these laws, known to writers on public and private international law as personal statutes, operate only on the inhabitants of the country. Not that it is or can be denied that each independent nation may, if it thinks fit, apply them to all persons within their limits. But when this is done, not in conformity with the principles of international law, other states are not understood to be willing to recognize or allow effect to such applications of personal statutes."

On p. 601 of the Report, Judge Curtis says: "To avoid misapprehension on this

portions of the Opinion particularly referred to are given in the note.

977. The question whether the national judiciary must accept the decision of the State court, on the facts in the particular case, as the authoritative exposition of the law of the State

important and difficult subject, I will state, distinctly, the conclusions at which I have arrived. They are

"First. The rules of international law respecting the emancipation of slaves, by the rightful operation of the laws of another State or country upon the status of the slave, while resident in such foreign State or country, are part of the common law of Missouri, and have not been abrogated by any statute law of that State.

Second. The laws of the United States, constitutionally enacted, which operated directly on and changed the status of a slave coming into the Territory of Wisconsin with his master, who went thither to reside for an indefinite length of time, in the performance of his duties as an officer of the United States, had a rightful operation on the status of the slave, and it is in conformity with the rules of international law that this change of status should be recognized everywhere. "Third. The laws of the United States, in operation in the Territory of Wisconsin at the time of the plaintiff's residence there, did act directly on the status of the plaintiff, and change his status to that of a free man.

"Fourth. The plaintiff and his wife were capable of contracting, and, with the consent of Dr. Emerson, did contract, a marriage in that Territory, valid under its laws; and the validity of this marriage cannot be questioned in Missouri, save by showing that it was in fraud of the laws of that State, or of some right de rived from them; which cannot be shown in this case, because the master consented to it.

"Fifth. That the consent of the master that his slave, residing in a country which does not tolerate slavery, may enter into a lawful contract of marriage, attended with the civil rights and duties which belong to that condition, is an effectual act of emancipation. And the law does not enable Dr. Emerson, or any one claiming under him, to assert a title to the married persons as slaves, and thus destroy the obligation of the contract of marriage, and bastardize their issue, and reduce them to slavery.

"But it is insisted that the Supreme Court of Missouri has settled this case by its decision in Scott v. Emerson (15 Missouri Reports, 576); and that this decision is in conformity with the weight of authority elsewhere, and with sound principles. If the Supreme Court of Missouri had placed its decision on the ground that it appeared Dr. Emerson never became domiciled in the Territory, and so its laws could not rightfully operate on him and his slave; and the facts that he went there to reside indefinitely, as an officer of the United States, and that the plaintiff was lawfully married there, with Dr. Emerson's consent, were left out of view, the decision would find support in other cases, and I might not be prepared to deny its correctness. But the decision is not rested on this ground. The domicil of Dr. Emerson in that Territory is not questioned in that decision; and it is placed on a broad denial of the operation, in Missouri, of the law of any foreign State or country upon the status of a slave, going with his master from Missouri into such foreign State or country, even though they went thither to become, and actually became, permanent inhabitants of such foreign State or country, the laws whereof acted directly on the status of the slave, and changed his status to that of a freeman.

"To the correctness of such a decision I cannot assent. In my judgment, the opinion of the majority of the court in that case is in conflict with its previous decisions, with a great weight of judicial authority in other slaveholding States, and with fundamental principles of private international law. Mr. Chief Justice Gamble, in his dissenting opinion in that case, said:" &c.