The weekly Mississippian. [volume] (Jackson, Miss.) 1859-1864, 1860-06-13
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face of the country that, ifthe decision is made
II shall not 90 into effect. That is the ar
raienInent of the honorable Senator from ILL.,
nois. Let him not go back to 1910, or 1874,
or 1913, or 1852, or 1854, when he had the
party with him, nor even to 1856 !; but let him
come down to the decision Of the Supreme
Court of the United States, in the spring Of
1851, and let him follow me while I pursue
his devious track since that day.
Early in the year 1857, the bred Scott de-
eision was pronounced by the Supreme Court
of the United States. IF my recollection
serves me, the decision had not been printed
when we adjourned. A numbered us, l think
subscribed together to obtain number of cop
les from the Public Printer, agreeing that be
should print such number as we believed
the Senate would be willing to have printed,
when it re-assembled and if the Senate de-
elined to print it, when it assembled, we made
ourselves responsible to him for the price. 1t
was desired that the decision Of the Supreme
Court should go to the country. The dissen-
ting opinions of the two judges, who were in
the minority, had been printed. The opinion
of the court was still unknown. The result
of its opinion was pretty well aseertained;
butin matterof the magnitude it was deemed
of the last importance to have the very Ian
guage Of thecourt, and to have it spread broad
cast through the land. Now, Mr. President,
we are told that this decision decides nothing
of what was at issue at the time nothing Of
that issue which the honorable Senator from
Illinois agreed to leave to the courts do
not know any better way Of ascertaining what
a court decided than to do as the honorable
Senator from Illinois has advised us to do
cided. In reference to this bred Scott decision
it will be observed by any gentleman who
chooses to refer to the nineteenth volume of
Towards Reports, thateyery judge gave his
opinion seriatiBs because there were numer-
GUS questions on which all did not choose to
be bound without giving statement of their
particular views but Mr.. Chief Justice fancy
delivered the opinion Of the court. The rest
were mere statements of particular views
Mr.. Chief Justice fancy" is the expression,
delivered the opinion sof the court - and
Mr. Chief Justice fancy is said to have made
syllabus of the points which he, the organ
of the court, considered to have been decided
By the court.
Now, in regard to the attempt to get nd of
the authority of this decision on the ground
that the questions were not before the court,
anu tAdL Sl1c1 6CfC OUttc1 btttuf dlAoW W
say this it is true, that when precise point
is before court, the judgment of the court
upon that point is alone that which binds the
parties but no lawyer will contradic. this
assertion, that those principles which the
court itself lays down as being the basis upon
which it arrives at its conclusion, are decisions
by the court they are not obiter dicta OH
ter dicta, merely passing sayings, ARE such
fhrrxx-r hty n 1rIAao fhao
of his reasoning as have no reference to the
points upon which he is deciding the case !;
but whenever, in order to reach result, the
court proceeds to give those reasons for that
result, and in giving those reasons for arriving
at the result, it lays down the principles upon
which the result is reached I say those prin-
ciples are considered as decided by the court
If unnecessary to its decision, they have less
weight; but if the court itself declares the
principles that it lays down to be necessary to
its decision, and declares that it does decide
them, then say no lawyer can fail, when
that case IS brought up before the court, to say
the court has so decided.
do not choose TO go into that at any length,
nor even to read the syllabus of the decision
of the Supreme Court. But what were we
divided about in the year 1854, and what it
agreed to leave to the decision of the Supreme
Court of the United States, upon case to be
brought up from the local Legislature of Kan
sas It was this ]: has Congress power to
govern the Territories of the United States.
or is that power in the Territorial Legislature
Has Congress the right to exclude slavery
from the Territories, or can it delegate that
right to Territorial Legislature or las a
an inherent right to exclude slavery ? These
are the points.
When this case was brought before the Su-
preme Court of the United States, the ques-
ton Of the power of Congress arose directly
no man has ever denied that-the power of
Congress to declare that slave should be free
by being carried into the Territories of the
United States north Of the Missouri compro-
mise line. That, then, brought directly in
question the power OF Congress to exclude
slavery from the Territories its power to
govern them, and the limit upon that power.
What did the court say ? In referring to
former decision, it says:
Perhaps the power of governing Terri
tory belonging to the United States
Observe this language
(Which has not by becoming State, acquired
the means of selfgoFernmentv-
Taking it for granted that every man must
at once admit that it is only when it becomes
q State that it has acquired the power of self
government
perhaps the power of governing Terri
tory belonging to the United States, which
has not, by becoming State, acquired the
means of self-goyernment, may result neces-
sarily. from the fact that it is not within the
jurisdiction of any particular State, and is
within the power and jurisdiction of the Uni
ted States The right to govern may be the
inevitable consequence Of the right to acquire
territory. Whichever may be the source from
which the power is derived, the possession of
it is unquestionable."
Mr. Pugh-What is that ?
Mr.. Benjamin. am reading the citation
from Canter's case, found in the bred Scott
decision. What did the court, in commenting
on that
Mr.. Pugh-I only want to ask the Senator
whether In the bred Scott decision, it is not
quoted for the purpose of being commented
upon
Mr.. Benjamin. am going on to show, if
the Senator will permit me, that the Court
adopted that in the bred Scott case. I do not
think leave quite so open q joint as that in
my argument. The Court, in the bred Scott
case; go on:
sit is thus clear, from the whole opinion on
this point, that the Court did not mean to de-
eide whether the power waslderived from the
clause in the Constitution, or was the neces-
sary consequence of the right to acquire
They do decide that the power in Congress is
unquestionable, and in this we entirely con-
cur, and nothing will be found in this opinion
to the contrary. The power stands firmly ON
the latter alternative put by the Court-that
is. as The inevitable consequence Of the right to
acquire territory.n
They entirely concurred. Is that decided
in the bred Scott case
Mr.. Pugh-H the Senator asks me, think
the sentence he emphasized is expressly ex-
eluded BY the language Of Judge Taney.-
He emphasized the first paragraph and then
Judge fancy says the power stands in the
last paragraph.
Mr.. Benjamin-Well, will give you an
other chance. Let us take 10 Howard, page
AS, referring to that same decision in Canter's
case
aThus it viii be seen that these quotations
from the opinion, that the Court, after stating
the question it was about to decide in man.
ner too plain 20 be misunderstood, proceeded
to decide it, and announced, as the opinion of |
the tribunal, that in organizing the judicial ce-
partment of the Government in Territory /
Of the United States Congress does not act I
under, and is not restricted by. the third arti-
lie in the Constitution. and is not bound, in a
Territory, to ordain and establish courts in
which the judges hold their offices during
good behavior, but may exercise the discre-
.ionary power which State exercise in es-
its Judicial department, and regula-
ing the jurisdiction of its courts, and may au-
.horize the Territorial Government to estab- |
ish, or It may itself establish, court in which |
he judges hold their offices for term of years
1nly and may vest in them judicial power |
upon the subjects confded to the Judiciary of |
he United States, and in doing this, Congress |
exercises the combined power of |
he General and State Government. TEX
srcises the discretionary power Of q State
in authorizing the establishment
# court in which the judges hold their ap-
,ointments for term Of years only, and not /
Turing good behavior and it exercises the
,ower of the General Government in inyes-
ing that court with admiralty jurisdiction