332
THE GREEN BAG
on a writ of error from a judgment of the Circuit Court of the United States for the District of Missouri. Dred Scott, a negro, brought the suit to recover the freedom of himself, his wife and children, who were held in slavery. The claim of freedom was based on the following facts. His master, a surgeon in the army, had taken him from Missouri to Rock Island, in the State of Illinois, and thence to Fort Snelling, in the Territory of Wisconsin, remaining at Rock Island several months and at Fort Snelling two years or more. Scott had married his wife who was also a slave at the latter place, and had been taken there under similar cir cumstances; and both of them afterward returned with their master to the State of Missouri. If Scott had brought his action in the State of Illinois, while held there, he would doubtless have recovered his liberty under the rule subsequently recognized and enforced in the Lemmon case.1 Or, if he had done so while at Fort Snelling, the same result would have followed, unless the pro hibition contained in the Act of Congress known as the Missouri Compromise were adjudged to be in violation of the Federal Constitution; and even in that event he would still have been entitled to his freedom unless the court was also prepared to decide that the Constitution protected slavery in the Territories. But the last question could not arise or be subject to judicial determination until it was necessarily in volved in the decision of the case. In the language of Judge Nelson, it was "a ques tion exclusively of Missouri law, which, when determined (as it had been) by that state, it was the duty of the federal courts to fol low it. In other words, except in cases where the power is restrained by the Con stitution of the United States, the law of the state is supreme over the subject of slavery within its jurisdiction. " : And after examining the authorities he added: "Our conclusion, therefore, is, that the question 110 N. Y., 562-3. • 19 How. (v. S.) 45Q.
involved is one depending solely upon the law of Missouri, and that the federal court sitting in the state, and trying the case before us, was bound to follow it."1 The Supreme Court of Missouri had previously decided that Dred Scott and his family, upon their return with their master to their old home, retained their domicile there, and were subject to the local law, which re manded them to slavery. It was upon this ground that the circuit court had pronounced its judgment in favor of the master, and on which the Supreme Court after the first argument determined to place its decision of affirmance, selecting Judge Nelson to write the opinion. This opinion was pre pared and read in conference, and did not assume to determine a question mooted at the bar, whether the writ of error brought up for review a preliminary decision of the trial court overruling a plea in abatement interposed by the master before filing his plea in bar to the declaration. In the dis cussion which followed on that question, it was found that the other judges, eight in number, were equally divided, and Judge Nelson, deeming it immaterial, had not given it sufficient consideration to reach a definite conclusion. He therefore sug gested a re-argument, and that course was adopted. The case was re-argued at the next term. A majority of the judges in consultation concurred in holding that the ruling at the circuit on the plea in abate ment was not before the Supreme Court for review, the majority consisting of Justices McLean, Catron, Nelson, Grier and Camp bell, and the minority including Chief Jus tice Taney and Justices Wayne, Daniel and Curtis.2 ' Id. 4651 This view is sustained over the signatures of Justices Nelson and Campbell, as appears in Tyler's Memoir of Chief Justice Taney, p. 382-5. These letters throw a lurid light upon the official report of the case in which the opinion of the Chief Justice on this question is given as the opinion of the rourt
