delivered the opinion of the court.

This was an action under the statute, against the appellant (the Ste.amboat) for transporting from St..Louis, a slave, the property of the appellee, to the State of Illinois, without the consent of his master, whereby he was lost. The defence was, that the slave was entitled to his freedom, and that he was permitted to go about and act as a free person.

It appears, that evidence was offered, showing that the mother of Carter, the slave in controversy, was detained in servitude in the territory (now the State of Illinois,) from the year 1812 to the latter part of the year 1818, by her master, who afterwards moved to this State, where, in the year 1824, Carter was born, This evidence was excluded by the court, on the ground, that the freedom of the'slave could not be set up as a defence to the plaintiff’s action. The plaintiff obtained a verdict, and the defendant appealed to this court. The admissibility of the evidence, excluded by the court, is the only point involved in the case.

It was contended for the appellant, that under the ordinance of 1787, according to the previous decisions of this court, the detention of the mother of Carter in servitude, in the territory of Illinois, made her free, and that Carter, being subsequently born, followed the condition of his mother, and was also free, and that this fact, under the authority of the case of Chouteau & Keizer vs. Hope, 7 Mo. Rep., was a validdefence to the action. The case of Dred Scott vs. Emerson, decided at this term of the court, shows, that the facts offered in evidence, would not entitle the mother of Carter to her freedom. The case of Chouteau & Keizer vs. Hope, cannot be sustained, to the length, that the right of one detained in slavery, who has never been actually free, may be asserted in a collateral proceeding. It would seem, that under the statute, one held in slavery, in violation of law, may assert his right to freedom, in the manner therein pointed out. But this is a personal privilege, and so long as he acquiesces in his condition, another cannot litigate his right to freedom.

The other judges concurring, the judgment-will be affirmed.