The Nevada journal. [volume] (Nevada City, Calif.) 1851-18??, 1857-10-02
What the bred Scott Case Decided and
what it did not decide.

omclal report Itself. In tact, the review
has done just what the reporter, Mr.
Howard, in long and confused head
notes. attempted, but failed to accom-
plish. Those, also, who desire to I'M
derstand. not merely the points which
the so-called decision really decided. bu
what it did not decide, will do well tc
consult the Law Reporters article. the
authorship of which is ascribed to Ho.
race Gray, Jr., and John Lowell, two
well-known legal gentlemen of Boston
The result of their investigation of the
decision is briefly stated as follows:
"First-As to the question, Can ne
gro be citizen of the United States
1t has been commonly supposed that
the Court decided this question in the
negative. This is a mistake. From
the form in which it was presented, it
was very doubtful whether it was before
the Court for decision Four of the
nine Judges thought that it was, these
were the Chief Justice, and Justices
Wayne and Daniel, who answer the
question in the negative, and Justice
Curtis, who answers in in the affirmative.
OF the Judges who give no opinion on
the point, one Judge McLean) declares
that if he answers the question at all it
would be in the affirmative; Judge Ca
tron, when Chief Justice of the Supreme
Court of Tennessee, gave an opinion di-
rectly involving an affirmative answer
to the quest on; the three other Judges
give no clue to their opinions. On this
question then, the Court stands thus :
three in the affirmative, three in the ne
gative, and three silent.
"Secondly-Was the Missouri Com
promise Constitutional :? 1t is a perfect
ly well settled principle of the Supreme
Court, and one that has been often laid
down from its bench, that no part of an
opinion of the Court is to be regarded
as of authority as precedent which was
not necessary to the determination of
the question before it. Anything be-.
yond this is merely the expression of
the individual opinion of the Judge and
it has been well said that "if general
dicta are to be considered as establish
ing the law, nothing is yet settled or
can long be settled" Bearing this in
mind, let us look at the facts of the case.
Scott was a slave in Missouri; was Ia
ken by his master to Illinois, ana thence
into a territory of the United States
where slavery was prohibited by the
Missouri compromise and thence back
to Missouri The opinion of the court
is placed upon the ground that the laws
of Missouri are to decide whether Scott
is or is not slave now that he has re-
turned thither. If this be so, what mat
tiers it whether the compromise was val
id or invalid p! In other words, whether
Scott was free when in Illinois, or in
the territory, or whether he continued
to be a slave all the time And if the
court goes out of its way to give an opin-
ion on this point, could palmer in
stance be found of an opinion on point
not necessary to the determination of
the rights of the parties
The court, then. has not decided that
the Missouri Compromise was unconsti-
tutional.
"Thirdly-This case is often spoken
of as deciding that master may take
his slave to free State and there hold
him as slave. This is simple mis-
take there is no such point decided.
But,
"Fourthly--The doctrine is here es-
tablished that, if slave be taken by
his master to free State, and does not
there claim his liberty, but consents to
return with his master to slave State,
he may be held as slave there, if the
highest court of that State considers
him still to be a slave. In other words,
the bred Scott case does not decide
that a negro is a slave in free State
because he wds slave in the State
from which he was brought; nor, that
a slave carried from slave to free
State and brought back, is free because
he might have claimed his freedom in
the free State nor that he is necessari-
ly slave after his return but leaves
his freedom or slavery to be settled by
the laws of the slave State to which he
returned with his master"
al l.