Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/40

 for ill usage, and may have a habeas corpus, if restrained of his liberty. Bill dismissed, with costs." Shanley v. Harvey, 2 Eden, 126. Even Lord Stowell, who thought that a slave, by returning to a colony where slavery legally existed, resumed in all respects the condition of slavery, (a theory which we shall be obliged to examine presently,) expressly admits the law to be well settled "that slaves coming into England are free there, and that they cannot be sent out of the country by any process to be there executed." The Slave Grace, 2 Hagg. Adm. 118. So that the English courts of common law, equity, and admiralty, all concur in opinion to this extent.

The same doctrine has been affirmed by the supreme court of the United States. "The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognized in Sommersett's case, which was decided before the American Revolution." Prigg v. Commonwealth of Pennsylvania, 16 Peters, 611, 612.

Like decisions have been made in every free State in which the question has arisen. And the same rule has been often recognized by the courts of slave States, but as the question necessarily arose before them after the slave's return, they will be considered more appropriately under our next head. The only instance, known to us, in which the courts of a State where slavery is prohibited by law have recognized the right of a master, under any circumstances, to restrain his slave of his liberty in that State, is the decision of the supreme court of Illinois in Willard v. People, 4 Scam. 461, and that was the case of a mere passage through Illinois from the slave State of Kentucky on the one side to the slave State of Missouri on the other. A contrary decision was made by Judge Paine of the superior court of New York, in People v. Lemmon, 5 Sandf. 681; and in the case of Commonwealth v. Fitzgerald, 7 Law Reporter, 379, Chief Justice Shaw discharged a slave in attendance upon his master, an officer in the navy of the United States, upon the vessel's coming, by order of a superior officer, into a port of Massachusetts. But a consideration of the question of the right of mere transit is not within the scope of this article; for, whether Dred Scott acquired a technical domicil or not, either in Illinois or in the Territory, the facts agreed show that he had an actual residence in each place for two years.

IV Taking it then to be undisputed and indisputable that a slave taken by his master into a free State, and