Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/57

 Ordinance of 1787, if still in force, could have no more operation than the laws of Ohio in the State of Kentucky, and could not influence the decision upon the rights of the master or the slaves in that State, nor give this court jurisdiction upon the subject." Strader v. Graham, 10 Howard, 93, 94. It is true that, as that case came by writ of error from a State court, the point on which the decision turned was that the supreme court had no jurisdiction of the case under the twenty-second section of the judiciary act of 1789, because the judgment of the State court involved no question arising under the Constitution or laws of the United States. But the passages above cited show the reasons which led the court to this decision. And the remark about the Ordinance of 1787 shows that the refusal of a State to give extra-territorial operation to an act of congress for the government of a Territory was not a decision against any existing right claimed under a law of the United States.

If the law of the State, as declared by its judges, is to finally determine this question, the fact that the State courts formerly laid down the law differently would not seem to be of any importance, provided the new exposition has been so repeatedly affirmed that it must now be considered as the settled law of the State; and that such was the condition of the law of Missouri on this point, at least so far as it was made known to the supreme court of the United States, we have already shown. In former times, the supreme court of the United States was accustomed to follow the decisions of the State courts upon matters within their province, even when contrary to the law as previously established by those courts, and declared by the courts of the United States. Elmendorf v. Taylor, 10 Wheaton, 165; United States v. Morrison, 4 Peters, 124; Green v. Neat, 6 Peters, 298, 299. As was said by Mr. Justice McLean, twenty-five years ago, in delivering the opinion of the court in the case last cited: "The same reason which influences this court to adopt the construction given to the local law, in the first instance, is not less strong in favor of following it in the second, if the State tribunals should change the construction. A reference is here made not to a single adjudication, but to a series of decisions which shall settle the rule. Are not the injurious effects on the interests of the citizens of a State as great, in refusing to adopt the change of construction, as in refusing to adopt the first construction?"

It must be admitted, however, that in many recent cases the supreme court has refused to be bound by decisions of