The Jeffersonian. [volume] (Stroudsburg, Pa.) 1853-1911, 1860-03-01
SPEECH OF CAssIUs II. CLAY.

SPEECH OF CASsIUs II. CLAY.
Delivered on The Capitol Steps at Frank
fort, January 10, 1860,
Obiter Dicta.
Gentlemen, time passes quickly sDd oi
course | cauuot go eaborately into the
argument upon the other part Of that
which is clsimed to be the decision in the
Dred Scott case. that is, that the law oi
1857 first passed by the confederation oi
States, and re. enacted by the House OF
Representatives at it's very first session
under the Constitution iu 1889 was un-
constitutional That is the dicta of these
FIVE judges. Well, now, gentlemen, just
let me state one or two strong points that
everJ man of common sense can uDder-
stand. 1t is the practice of all Courts
Courts of Common law and Courts Of Z
ouity of the United States, and of ali
Courts of reasonable justice and com w on
sense on Gods earth. from the earliest
time to the latest day, that when ques
tons, come up for decision, they decide
the main question, and that obiter dicta,
that is, words spoken incidentally, aud uot
to the main question, i not Law. There
are Democratic lawyers that hear ne to-
night, aud and they will bear me out iD
this statement, and it is right. There
are Just reasons for it, because the atten
ton of the Judges being bound to the
main issue, they must not be held re-
sponsible for the incidental questions of
the case. Now, that is what Justices
Mclean snd Curtis tell US, and they are,
in my opinion, the ablest Judges upon
the Bench. | think Justice Curtis the a
blest Judge ever read after, and be tells
us that wheD the Supreme Court decided
in the case that it had no jurisdiction
there their whole power ceased. That is
what this Judge tells US, that is what the
Republicans say. that is what every hon
est man, unbiased By political assOcia-
tions and considerations, must say L
cav it, gentlemen, that in my humble
judgement. the rest of the opinion is not
law, aud in this | am supported by some
OF the very ablest judicial minds of the
United States Not only so, but Justice
Curtis shows that the Supreme Court has
decided again and again that obiter die
ia is DOT Law, and Is not 30 to be consid-
cred There are decisions in that report
quoted, absolutely made to the effect
that these Incidental decisions th lat come
in are not part of the Law of the land
Therefore, We say in denial of what the
Democratic party has said today, that
it is not the Law of the land. Therefore,
We 20 upon that subject for not changing.
rather we deny that il is Law, and we aP-
peal to the country to decide between US
We owe 10 allegiance to it as to Law of
the United States, but it is yet open for
free discussion by the people of the Uni.
ted States, that they may determine 1t
under the Constitution Of the United
States. To so much We plead guilty.
The Word Regulate.
Now, as that is an important question,
Jet us dwell yet while longer upon it
In the frst place, let US see what were the
terms Of the old Confederation 10 conDec-
tion With it. They declared, gentlemen,
before they ceded these lands to the u
pited States, that these Territories should
belong to the United States, and that the
United States should have complete con-
troll, both political and practical, over
them; that is to say, that they yielded
the entire Jurisdiction of the Territory,
and the United States, under the act
yielding these Territories to the United
States, achieved as they we're by the com
mon blood and treasure, it vas the de-
termination of sll the States themselves
60 yield up the entire control ofthem, and
therefore when the Supreme Court under
took to say that that clause Of the Con-
stitution which says: "Tbe Congress
shall have power to dispose of and make
all needful rules and regulations respect
ing the territory or other property of the
United States" does not mean what it
says. they are forced to the absurd con-
clusion, notwithstanding the object had in
view in making the cessioD, that when
the land was given, the States did not
mean what they said, look to what a
forced construction they are given. They
deny this positive grant of power to pass
laws BY Congress to prohibit Slavery in
in the Territories. and the assertion that
the word regulation" is not common
term used by legal men when they intend
to confer power. That is the argument
of the Supreme Court.
Let us look at that Four times is
the word regulation used in the Con-
stitudou With regard to grants Of power,