Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/49

 similar decisions since, it is important that the case should be clearly understood. It was not, as is often supposed, a suit for freedom, nor was the slave in any way a party to the proceeding, but only the thing, the forfeiture of which was the sole purpose of the suit. It was an information in admiralty, filed in the name of the King by an officer of the customs, on the acts of parliament of 47 and 59 Geo. III., one prohibiting the slave trade, and the other prohibiting the transportation of any person as a slave from one colony to another without a certificate of registry. The counts relied on were three; one for exporting the slave from Antigua to England, and another for bringing her back, without the certificate required; and the third for unlawfully importing her, being a free subject, as a slave from Great Britain to Antigua, "contrary to the form of the statute in such case made and provided." Lord Stowell held that the registry act applied only to slaves transported from one colony to another, and not to those carried to or from the mother country; and that the act prohibiting the slave trade did not apply to the importation of persons who were actually free; and, as the penalty prescribed by each of these statutes, the recovery of which was the only legitimate purpose of this information, was the forfeiture of the slave, (to be apprenticed under the direction of the Crown and ultimately enfranchised,) that the information could not, in any aspect of the case, be maintained; and therefore, according to the uniform practice in admiralty, decreed that the slave, the subject sought to be forfeited, be restored to the custody of the claimant.

But Lord Stowell also proceeded to discuss the general question whether the slave, after her return to Antigua, was to be deemed free, by reason of her residence in England; and arrived at the conclusion that she was not. The chief arguments on which this conclusion was based were four; first, the limited operation of the law of England upon the condition of the slave, and second, the effect of the slave's voluntary return to the slave colony—both of which questions we have already considered; third, the fact that, though fifty years had elapsed since Sommersett's case, no slave, after such return, had claimed his liberty—a fact which could hardly be judicially known, and if true, should not have had greater effect than was allowed by Lord Mansfield to the fact that thousands of slaves were actually held under a claim of right in London, when he declared Sommersett free; and fourth, the countenance given by the laws of Great Britain herself to the existence of slavery