Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/27

 not arise in the federal courts within any State, between these parties, nor indeed in any suit to which a descendant of negro slaves was a party. And this disposes of the alleged distinction between writs of error to State and to federal courts; for since the effect of the decision is that the State courts are the only tribunals which can try this case, the same reason holds for refusing to discuss the other questions, as if the case had been brought directly from a State court. But as the question raised by the plea in abatement now turns out not to have been decided, we are necessarily brought to consider the facts on which judgment was rendered against the plaintiff in the court below, which we will briefly recapitulate:

The plaintiff, being a slave in Missouri, was taken by his master to a military post in the State of Illinois, and there held as a slave for two years; thence taken to a military post in Territory where slavery was prohibited by the act of congress, known as the Missouri Compromise Act, and there held as a slave for two years; and thence carried back into the State of Missouri, where the supreme court of that State held him to be still a slave. The question of most interest, argued upon these facts, is whether that part of the Missouri Compromise Act is constitutional, which prohibits slavery in the Territory of the United States lying north of 36° 30′ north latitude. It has been supposed that if the supreme court did not decide the question of the citizenship of negroes, they did decide against the validity of this prohibition. It is true that six of the judges expressed their opinions that it was unconstitutional and void; but it is easy to show that the point was not judicially determined.

The court, as we have shown, undoubtedly did decide that the plaintiff was a slave when this suit was brought; and in order to arrive at this conclusion, they must have held, either that he never became entitled to his freedom, or that, having acquired such a right, he lost it by his return to Missouri. But in order to determine the case upon the first ground, it must have been held, not only that the plaintiff did not become entitled to freedom in the Territory, but also that he could not have asserted such a right in Illinois—a position which most of the judges do not even suggest. On the contrary, the decision, so far as the residence in Illinois is concerned, is put distinctly upon the ground, that the laws of Illinois could not operate on the plaintiff after his return to Missouri. This decision disposes equally of his