Handwritten Opinion of J. Ryland

Item

“Handwritten Opinion of J. Ryland”. Second Appeal to the Supreme Court of the State of Missouri, 1850-1852, 1852, St. Louis Circuit Court Historical Records Project, accessed October 3, 2026, https://digitalexhibits.library.washu.edu/s/ccr/item/109364

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Filing Name: Handwritten Opinion of J. Ryland
Description: Opinion of the court by J. Ryland, with J. Smith concurring
Date: 1852-03-22
Court Term: March Term 1852
Is Part Of: Second Appeal to the Supreme Court of the State of Missouri, 1850-1852
Identifier: dre1852.0000.152
Case ID: ccr1850.0000.011
Source: Missouri State Archives - Supreme Court of Missouri Historical Records
Rights: Public Domain
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Transcription: **Item Page 1**

> Image file: MSA-B161F17b.17.jpg
> Document: Handwritten Opinion of J. Ryland

Irene Emerson admr'rx.
vs.
Dred Scott
Error to the St. Louis Circuit Court

This was an action instituted
by Dred Scott against Irene Emerson the wife
and administratrix of Dr. John Emerson to try
his right to freedom. His claim is based upon
the fact that his late master held him in servitude
in the State of Illinois and also in that territory
ceded by France to the United States under
the name of Louisiana which lies north of 36
degrees 30 minutes North latitude not included
within the limits of the State of Missouri. It
appears that his late master was a Surgeon
in the Army of the United States and during
his continuance in the service was stationed
at Rock Island a military post in the State
of Illinois and at Fort Snelling also a military
post in the Territory of the United States
above described, at both of which places Scott
was detained in servitude. At ~~the~~ one place
from the year 1834 until April or May in 1836,
at the other, from the period last mentioned until
the year 1838. The jury was instructed in effect
that if such were the facts they would find
for Scott. He accordingly obtained a verdict.
The defendant moved for a new trial on the
ground of misdirection by the court, which
being denied to her, she sued out this
writ of error.

Cases of this kind are not strangers
in our Courts. Persons have been frequently
adjudged to be entitled to their freedom on the
ground that their masters held them in slavery

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> Document: Handwritten Opinion of J. Ryland

in territories or states in which that institution was
prohibited. From the first case decided in our Courts
it might be inferred, that this result was brought
^ about ^ by a presumed assent of the master from the fact
of having voluntarily taken his slave to a place
where the relation of master and slave did not
exist. But subsequent cases base the right <u> "to exact
the forfeiture of emancipation" </u> as they term it,
on the ground, it would seem, that it is the duty of
the Courts of this state to carry into effect, the
constitution and laws of other states and territories,
regardless of the rights, the policy or the
institutions of the people of this state.

The States of this Union although
associated for some purposes of government, yet in
relation to their municipal concerns have always
been regarded as foreign to each other. The law
of descents of one state is not regarded in another
in the distribution of the estates of deceased
persons. So of the law of wills, administrations
judicial proceedings and all other matters
of mere internal police. The courts of one state
do not take judicial notice of the laws of
other states. They, when it is necessary to be
shown what they are, must be proved like other
facts. So of the laws of the United States enacted
for the mere purpose of governing a territory. Those
laws have no force in the states of the Union:
They are local and relate to the municipal affairs
of the territory. Their effect is confined within
its limits and beyond those limits, they have no
more effect in any state, than the municipal
laws of one state, would have in any other
state. State of Virginia adv. Kohens 6 Wheat. This doctrine

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> Document: Handwritten Opinion of J. Ryland

doctrine is declared and maintained not only with respect
to nations strictly foreign to each other
but also to the several States of this Union. Every
State has the right of determining how far in
a spirit of comity it will respect the laws
of other states. Those laws have no intrinsic right
to be enforced beyond the limits of the state for
which they were enacted. The respect allowed them
will depend altogether on their conformity to the
policy of our institutions: No state is bound to
carry into effect enactments conceived in a spirit
hostile to that which pervades her own laws: In
the Conflict of laws sec. 36 it is said, but of the nature,
extent & utility of this recognition of foreign
laws respecting the state and condition of persons
every nation must judge for itself & certainly is
not bound to recognize them, when they would be
prejudicial to its own interests. It is in the strictest
sense, a matter of the comity of nations & not of any
absolute paramount obligation, superseding all
discretion on the subject: So in sec. 32 it is said, it is
difficult to conceive upon what ground a claim can
be rested to give any municipal laws an extra territorial
effect, when those laws are prejudicial to the
rights of other nations or to those of their subjects:
It would at once annihilate the sovereignty and
equality of every nation, which should be called
upon to recognize & enforce them; or compel it to
desert its own proper interest & duty to its own
subjects in favor of strangers who were regardless
of both. A claim so naked of any principle or
just authority to support it, is wholly inadmissible.
Again, "the comity of nations" is derived altogether
from the voluntary consent of the state by

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> Document: Handwritten Opinion of J. Ryland

which it is shown, and is inadmissible, when it is
contrary to its known policy or prejudicial to its
interests. In the silence of any positive rule, affirming
or denying or restraining the operation of foreign
laws, courts of justice presume the tacit adoption
of them by their own government, unless they
are repugnant to its policy or prejudicial to its
interests. Sec. 38. It is a~~n~~ humiliating spectacle to see
the courts of a state confiscating the property of her
own citizens by the command of a foreign law.
If Scott is freed by what means will it be effected
but by the constitution of the State of Illinois or the
territorial laws of the United States. Now, what
principle requires the interference of this Court?
Are not those governments capable of enforcing
their own laws, and if they are not, are we concerned
that such laws should be enforced
and that too at the cost of our own citizens?
States in which an absolute prohibition of slavery prevails,
maintain that if a slave with the consent
of his master touch their soil, he thereby becomes
free. The prohibition in the act, commonly
called the Missouri Compromise is absolute. How
is that to be interpreted? That act prevails along
over entire western boundary: If our courts take
upon themselves the task of enforcing the laws of
other States, it is nothing but reasonable, that
they should take them as they are understood where
they are promulgated. If a slave passes our western
boundary by the orders of his master & goes
into the territory subject to the Missouri compromise
does he thereby become free. Most of
the courts of this Union would say that he did,
if his freedom was sought to be recovered

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> Document: Handwritten Opinion of J. Ryland

under the laws of that territory? If our courts undertake
the task of enforcing that act, should they not take
it as most of the other states would? Some of our old
cases say that a hiring for two days would be a
violation of the constitution of Illinois & entitle the
slave to his freedom. If two days would do, why
not one? Is there any difference in principle ~~and~~ or
morality between holding a slave in a free territory
two days more than one day? and if one day why
not six hours. The old cases say the intent is nothing,
the act is the thing. Now are we prepared to
say, that we shall suffer these laws to be enforced
in our Courts? On almost three sides, the State of
Missouri is surrounded with free soil. If one of
our slaves touch that soil with his masters
assent he becomes entitled to his freedom. Considering
the numberless instances in which those living along
an extensive frontier would have occasion to occupy
their slaves beyond our boundary, how hard
would it be, if our courts should liberate all
the slaves who should thus be employed. How
unreasonable to ask it. If a master sends his
slave to hunt his horses or cattle beyond the
boundary, shall he thereby be liberated? But our
courts it is said will not go so far. If not go
the entire length, why go at all. The obligation to
enforce to the proper degree is as obligatory as to enforce
to any degree. Slavery is introduced by a continuance
in the territory for six hours as well as for
twelve months, and so far as our laws are
concerned the offense is as great in one case as in
the other. Laws operate only within the territory
of the state for which they are made and by
enforcing them here, we, contrary to all principle

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principle give them an extra territorial effect. Chancellor
Kent says, a statute though not in the nature
of a judicial proceeding, is, however, a record of
the highest nature. But if a statute, though a
matter of record was to have the same effect in
one state as in another, then one state would
be dictating laws for another & a fearful collision
of jurisdiction would instantly follow. That
construction is utterly inadmissible. While it is
conceded to be a principle of public law
requisite for the safe intercourse and commerce
of mankind, that acts valid by the law of the
where they arise, are valid every where, it is at
the same time to be understood, that this principle
relates only to civil acts founded on the
volition of the parties & not to such as proceed
from the sovereign power. The force of the latter
cannot be permitted to operate beyond the
limits of the territory, without affecting the
necessary independence of nations. 2. Kent 117.8
This language is used when speaking in reference
to the legislation of other states of the
Union. It is conceived, that there is no ground
to presume, or to impute any volition to Dr. Emerson,
that his slave should have his freedom.
He was ordered by superior authority to the posts
when his slave was detained in servitude
and in obedience to that authority he repaired
to them with his servant as he very naturally
supposed he had a right to do. To construe
this, into an assent to his slaves freedom, would
be doing violence to his acts. Nothing but a
persuasion that it is a duty to enforce
the foreign law, as though it was one of our

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> Document: Handwritten Opinion of J. Ryland

own, could ever induce a court to put such a construction
on his conduct. The present attitude of
the parties to this suit is conclusive as to an actual
consent, & nothing but the foreign law or the aid
derived from it can raise an implied one. If
the state of Missouri had prohibited slavery within
her limits, and our courts were called upon
to execute that law, some zeal might be tolerated
in our efforts to execute it, but while slavery
obtains here, there is no consideration which
would warrant us in going such lengths against
our own citizens for having permitted their
slaves to remain in the territory of a state where
slavery is prohibited.

In states and kingdoms in which
slavery is the least countenanced and where there
is a constant struggle against its existence, it is
admitted law, that if a slave accompanies his master
to a country in which slavery is prohibited
and remains there a length of time, if during
his continuance in such country, there is no act
manumission decreed by its courts, and he afterwards
returns to his masters domicile where slavery
prevails, he has no right to maintain a suit
founded upon a claim of permanent freedom.
This is the law of England, where it is said, that
her air is too pure for a slave to breathe in; and
that no sooner does he touch her soil, than his shackles
fall from him. The case of Slave Grace 2 Haggard
Admlty Rep. 94. Story in his conflict of laws, says
it has been solemnly decided, that the law of England
abhors and will not endure the existence
of slavery within the nation; and consequently
so soon as a slave lands in England, he becomes

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> Document: Handwritten Opinion of J. Ryland

becomes ipso facto a freeman & discharged from the
state of servitude, and there is no doubt, that the
same principle pervades the common law of the
non slave holding states in America; that is to say
foreign slaves would no longer be deemed such
after their removal thither. But he continues, it
is a very different question, how far the original
state of slavery might reattach upon the
party, if he should return to the country, by
whose laws he was declared to be and was held
as a slave. Sec. 95.6. In the case of the Commonwealth
of Massachusetts vs. Aves. 18 Pick. Judge
Shaw although declining to give an express opinion
upon this question intimates very clearly that if
the slave returns to his former country when
slavery obtains, his condition would not be
changed. In the case of Graham vs. Strader
5. Mon. 183 the Court of Appeals in Kentucky
held that the owner of a slave who resides
in Kentucky, who permits his slave to go to
~~Kentucky~~ Ohio on charge of an agent for a
temporary purpose, does not forfeit his right
of property in such slave.

An attempt has been made to show,
that the comity extended to the laws of other states
is a matter of discretion to be determined by the
Courts of that state, in which the laws are proposed
to be enforced. If it is a matter of discretion, that
discretion must be controlled by circumstances.
Times now are not as they were, when the former
decisions on this subject were made. Since then
not only individuals but States, have been possessed
with a dark and fell spirit in relation to
slavery, whose gratification is sought in the

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pursuit of measures whose inevitable consequence
must be the overthrow and destruction of our
government. Under such circumstances, it does not
behoove the State of Missouri, to show the least
countenance to any measure which might ~~appease~~
gratify this spirit. She is willing to assume her
full responsibility for the existence of slavery within
her limits, nor does she seek to share or divide
it with others. Although we may for our own
sakes regret that the avarice and hard-hearted-ness
of the progenitors of those who are now so
sensitive on the subject, ever introduced the
institution among us, yet we will not go to them
to learn law, morality or religion on the subject.
As to the consequences of slavery, they are
much more hurtful to the master than the
slave. There is no comparison between the slave
in the United States and the cruel uncivilized
negro in Africa. When the condition of our slaves
is contrasted with the state of their miserable
race in Africa, when their civilization, intelligence
and instruction in religious truths are considered
& the means now employed to restore them to the
land from which they have been torn, bearing with
them the blessings of civilized life, we are
almost persuaded, that the introduction of slavery
amongst us, was, in the providence of God, who
makes the evil passions of men subservient to his
own glory, a means of placing that unhappy
race within the pale of civilized nations.

Judge Ryland concurring
the judgment will be reversed &
the cause remanded

Wm. Scott

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> Document: Handwritten Opinion of J. Ryland

137

Irene Emerson
vs
Dred Scott

Opinion

Filed March 22nd 1852.
Wm. Glanville, Clerk.

Item sets: Dred Scott Collection; Second Appeal to the Supreme Court of the State of Missouri, 1850-1852