Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/50

 in her colonies, under the same imperial jurisdiction; which is suggested by the able Chief Justice of Louisiana, in the case last cited, as the only ground upon which Lord Stowell's opinion on this point is to be supported.

It is worthy of remark that the learned admiralty judge, at the same time that he was treating the reasons of Lord Mansheld in Sommersett's case, as obiter dicta and unnecessary to the decision of that case, himself fell into the very irregularity which he insinuates, rather than directly charges, against that great magistrate; for his opinion upon the construction of the statutes on which the information was founded, rendered the question whether Grace was free or slave immaterial to the decision. In a very similar case, the supreme court of the United States, ten years later, did not follow Lord Stowell's example in this respect. Upon a process in admiralty, commenced in behalf of the United States, under the act of congress prohibiting the slave trade, to enforce the forfeiture of a vessel in which a slave, previously carried from Louisiana to France by her mistress, had been brought back to Louisiana, the court placed their decision upon the simple ground that the act of Congress did not apply to the case, Chief Justice Taney, who delivered the opinion, saying: "Even assuming that by the French law she was entitled to freedom, there is nothing in the act of congress under which these proceedings were had, to prevent her mistress from bringing or sending her back to her place of residence, and continuing to hold her as before in her service." "The language of the act cannot properly be applied to persons of color who are domiciled in the United States, and who are brought back to their place of residence, after a temporary absence." United States v. The Garonne, 11 Peters, 77.

No American authority has been so often cited and relied on, as confirming Lord Stowell's view of this question, as that of Chief Justice Shaw. But the few words dropped by that great judge in Commonwealth v. Aces, 18 Pick. 208, 218, have certainly been treated as expressing a more decided and deliberate opinion than the circumstances under which they were spoken, or the words themselves warrant. The only point adjudged in the case was that a slave brought by her master into Massachusetts, though for a mere temporary purpose, could not be restrained of her liberty here, or carried back into a slave State, without her consent. The question of the effect which a voluntary return would have upon the rights of the slave, was not involved in the decision, and though the case of the Slave