Scott v. Emerson VI: "The Providence of God"

Justice Scott closed with a paean to black slavery as a civilizing and humane institution:

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, and the means now employed to restore them to the country 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.

Having justified the institution, Justice Scott imposed it on Dred Scott: "[T]he judgment is reversed, and the cause remanded."

Scott v. Emerson V: "Times Are Not Now As They Were"

Now Justice Scott comes to the heart of the matter. "[T]he comity shown 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" -- that is, in this instance, by the courts of the State of Missouri.

Even so, why should Missouri, after thirty years, decline to enforce the laws of other States concerning slave freedom? Justice Scott's answer says volumes for the increasing anger and distrust between the sections in the early 1850s:

If it is a matter of discretion, that discretion must be controlled by circumstances. Times are not now 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 pursuit of measures, whose inevitable consequences 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 gratify this spirit. She is willing to assume full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others.

Scott v. Emerson IV: "It Is Humiliating"

When we left him, Justice Scott had set the stage: laws are generally and presumptively local; if a state chooses to apply foreign law, it does so voluntarily and as a matter of comity.

Having set the stage, Justice Scott moves in closer. Two considerations suggest that Missouri should decline to apply foreign law here. First, "[i]t is a humiliating spectacle, to see the courts of a State confiscating the property of her own citizens by the command of a foreign law." States that free slaves are enforcing their own laws; should not Missouri do the same?

The geography of Missouri makes it especially vulnerable. "On almost three sides the State of Missouri is surrounded by free soil." "[N]umberless" slaves might be freed when "those living along an extreme frontier" sent them even briefly across the border.

Scott v. Emerson III: "The Act is the Thing"

The majority decision was written by Justice William Scott. After describing the facts, Justice Scott began by identifying the basis for the court's decisions "to exact the forfeiture of emancipation." It was not "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." Rather, the decisions presumed "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 old cases say, the intent is nothing, the act is the thing."

Justice Scott immediately questioned whether this duty existed. Although the States were "associated for some purposes of government," they "have always been regarded as foreign to each other" "in relation to their municipal concerns." In "all . . . matters of internal police," such as the laws of estates, States generally follow their own laws and not those of other States or federal laws "enacted for the mere purpose of governing a territory."

In short, there was no obligation to observe or enforce the laws of other States:

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.