the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the Steamboat Gipsey, north of the north line of the state of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the state of Missouri, at the military post called Jefferson Barracks.
In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza, from said Fort Snelling to the state of Missouri, where they have ever since resided.
Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves.
At the time mentioned in the plaintiff's declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza and Lizzie, and imprisoned them, doing, in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times.
It is agreed that Dred Scott brought suit for his freedom in the circuit court of St. Louis county; that there was a verdict and judgment in his favor; that on a writ of error to the supreme court, the judgment below was reversed, and the same remanded to the circuit court, where it has been continued to await the decision of this case.
In May, 1854, the cause went before a jury, who found the following verdict, viz: "As to the first issue joined in this case, we of the jury find the defendant not guilty; and as to the issue secondly above joined, we of the jury find that before and at the time when, &c, in the first count mentioned, the said Dred Scott was a negro slave, the lawful property of the defendant; and as to the issue thirdly above joined, we, the jury, find that before and at the time when, &c., in the second and third counts mentioned, the said Harriet, wife of said Dred Scott, and Eliza and Lizzie, the daughters of the said Dred Scott, were negro slaves, the lawful property of the defendant," Whereupon the court gave judgment for the defendant. After an ineffectual motion for a new trial, the plaintiff filed the following bill of exceptions:
On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read to the jury the following agreed statement of facts, (see agreement above.) No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give to the jury the folowing instruction, viz: "That upon the facts agreed to by the parties, they ought to find for the plaitiff. The court refused to give such instruction to the jury, and the plaintiff, to such refusal, then and there duly excepted."
The court then gave the following instruction to the jury, on motion of the defendant: "The jury are instructed, that upon the facts in this case, the law is with the defendant." The plaintiff excepted to this instruction. Upon these exceptions, the case came up to the supreme court.
