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CHAPTER IV

THE DRED SCOTT DECISION

CHAP. IV.

1854.

March 6, 1857.

DE

EEP and widespread as hitherto had been the slavery agitation created by the repeal of the Missouri Compromise and by the consequent civil war in Kansas, an event entirely unexpected to the public at large suddenly doubled its intensity. This was the announcement, two days after Buchanan's inauguration, of the decision of the Supreme Court of the United States in the Dred Scott case. This celebrated case had arisen as

follows:

Two or three years before the Nebraska bill was thought of, a suit was begun by a negro named Dred Scott, in a local court in St. Louis, Missouri, to recover the freedom of himself and his family from slavery. He alleged that his master, one Dr. Emerson, an army surgeon, living in Missouri, had taken him as his slave to the military post at Rock Island, in the State of Illinois, and afterwards to Fort Snelling, situated in what was originally Upper Louisiana, but was at that time part of Wisconsin Territory, and now forms part of Minnesota. While at this latter post Dred Scott, with his master's consent, married a colored woman, also brought as a slave from Missouri, and of this mar

riage two children were born. All this happened CHAP. IV. between the years 1834 and 1838. Afterwards Dr. Emerson brought Dred Scott and his family back to Missouri. In this suit they now claimed freedom, because during the time of residence with their master at these military posts slavery was there prohibited by positive law; namely, at Rock Island by the ordinance of 1787, and later by the Constitution of Illinois; at Fort Snelling by the Missouri Compromise acts of 1820, and other acts of Congress relating to Wisconsin Territory.

The local court in St. Louis before which this action was brought appears to have made short work of the case. It had become settled legal doctrine by Lord Mansfield's decision in the Somersett case, rendered four years before our Declaration of Independence, that "the state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only positive law. . . It is so odious that nothing can be suffered to support it but positive law." The learned chief-justice therefore ordered that Somersett, being claimed as a Virginia slave brought by his master into England, when it was attempted to carry him away against his will, should be discharged from custody or restraint, because there was no positive law in England to support slavery. The doctrine was subsequently modified by another English chief-justice, Lord Stowell, in 1827, to the effect that absence of positive law to support slavery in England only operates to suspend the master's authority, which is revived if the slave voluntarily returns into an English colony where slavery does exist by positive law.

CHAP. IV.

The States of the Union naturally inherited and retained the common law of England, and the principles and maxims of English jurisprudence not necessarily abrogated by the change of government, and among others this doctrine of Lord Mansfield. Unlike England, however, where there was no slavery and no law for or against it, some of the American States had positive laws establishing slavery, others positive laws prohibiting it. Lord Mansfield's doctrine, therefore, enlarged and strengthened by American statutes and decisions, had come to be substantially this: Slavery, being contrary to natural right, exists only by virtue of local law; if the master takes his slave for permanent residence into a jurisdiction where slavery is prohibited, the slave thereby acquires a right to his freedom everywhere. On the other hand, Lord Stowell's doctrine was similarly enlarged and strengthened so as to allow the master right of transit and temporary sojourn in free States and Territories without suspension or forfeiture of his authority over his slave. Under the complex American system of government, in which the Federal Union and the several States each claim sovereignty and independent action within certain limitations, it became the theory and practice that towards each other the several States occupied the attitude of foreign nations, which relation was governed by international law, and that the principle of comity alone controlled the recognition and enforcement by any State of the law of any other State. Under this theory, the courts of slave States had generally accorded freedom to slaves, even when acquired by the laws of a free State,

and reciprocally the courts of free States had en- CHAP. IV. forced the master's right to his slave where that right depended on the laws of a slave State. In this spirit, and conforming to this established usage, the local court of Missouri declared Dred Scott and his family free.

The claimant, loath to lose these four human "chattels," carried the case to the Supreme Court of the State of Missouri, where at its March term, 1852, it was reversed, and a decree rendered that these negroes were not entitled to freedom. Three judges formed the court, and two of them joined in an opinion bearing internal evidence that it was prompted, not by considerations of law and justice, but by a spirit of retaliation growing out of the ineradicable antagonism of freedom and slavery.

Every State [says the opinion] 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. . . 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. . . 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 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

CHAP. IV. Scott, J., 15

Mo. Reports, pp. 582-6.

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.

To this partisan bravado the third judge replied with a dignified rebuke; in his dissenting opinion he said:

As citizens of a slave-holding 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... 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... 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. [Citing cases.] . . . But the Supreme Court of Missouri, so far from standing alone on this question, is supported by the decisions of other slave States, including those in which it may be supposed there was the least disposition to favor emancipation. [Citing cases.] . . . Times may have changed, public feeling may have changed, but principles have not and do not change; 15 Mo. Re- and in my judgment there can be no safe basis for judicial decision but in those principles which are immutable.

Gamble, J.,

ports, pp.

589-92.

These utterances, it must be remembered, occurred in the year 1852, when all slavery agitation was supposed to have been forever settled. They show conclusively that the calm was superficial and delusive, and that this deep-reaching contest was still, as before the adjustment of 1850, actually

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