The Washington herald., 1909-10-31
DRIED SCOTT DECISION AGAIN.
Legal and Historical status OF the
Famous Case Reviewed.


can negro of pure African descent.
and whose ancestors were Of pure Afri-
can blood and were brought into
this country and sold as negro
slaves. be a citizen OF the United states?
Is a negro a thing. and not to be diff
fereniated from any other species of
property? Has the negro no rights which
a white man is bound TO respect-was
that doctrine enunciated by the Supreme
Court Of the United states? Was the
opinion of Chief Justice fancy that
pred Scott was not a citizen OF the
United States, that he had not acquired
his freedom through removal into an
other State. and that the Missouri Com
promise act forbidding slavery in GER
tain portion OF the Territory Of the Louis
lana Purchase was unconstitutiOnal-was
that opinion the opinion Of the whole
court? Did this court. after determining
that bred Scott was not a citizen OF the
United States. and. therefore that he
had no standing I'm a United states court
act within its rights in passing TO the
merits Of the questions involved and in
making q decision regarding the Missouri
Compromise-was not the remainder Of
the opinion. I'm the language Of the law,
obiter dictum? Was a citizen bound 10
respect such an opinion and 20 abide by
it2 Was Illinois free territory? Were
the same principles applicable TO slave
property as 20 any other? Would the
enforcement Of The Missouri Compromise
result In deprlviug citizens OF their prop
IL.
the provisions Of the Constitution apply
TO the Territories and, If so. 90 what eN-
tent? was the Missouri Compromise a
political act and. therefore. not subject
t0 review by the courts? Finally, was
, It the North or the South which most
firmly adhered 20 and pracuced the doc
trinc OF notification?
These vital questions whose heated dis
cussion once aroused the giants of other
days 90 their greatest intellectual en-
doavors and stirred the passions of the
American people 90 civil war, are sub
iected hy Mr. Ewing, a member of the
Washington bar, 90 the cold light of rea-
souins and historic fact and ably dis
cussed from the standpoint of an ardent
Southerner. lie fOrtIues the opinion of
the court I'm the bred Scott case I'm
every particular. He analyses carefully,
reasons closely. and I'm his study of the
case has evidently overlooked no ma
terial fact He leads up 90 the PROPOSE
ton that Southern secession was a de-
feusive move TO defeat the overt uulli-
tCauon by the North OF acts OF the Fed
eral government. and I'm support of his
position cites the resolutions of the leg
iSiatures OF Northern States repUdiaung
tho bred Scott decision, and the speeches
and writings i'm the same vein OF the
Northern press. pulpit and bar. The Re
publican party and Mr.. Lincoln, himself.
are included iu this Indictment
only the merest outline he says "Of
the history of this doctrine I'm the South
can here be given. but IL viii suggest
that broader view which must attain be-
fore the true relation OF the doctrine 20
our history can be seen. When this re-
adjustment of our historic perspective
shall have been made, the notification
of the bred Scott decision viii stand
much nearer 10 the foreground and in
outlines bold; and it win appear that the
secession Of the South certainly was not
the climax of her faith I'm and practice
OF that contention"
I'm the space permitted by newspaper
review 10 is not possible Co set ont in
detail the reasoning by which Mr.. Ewing
has sought TO sustain his various con-
tentiOns. Throughout the work his IT,
sight is keen and his logic uncrring and
both are founded ON a thorough kuowl-
edge of his subject If any one chapter
Is more deserving of attention than am
other. IL is that one. perhaps iu which
The author attacks the generally accept
cd theory that I'm passing on the ques-
tion of the constitutonaHty of the Mis-
souri, Compromise, the court went ont OF
its way and pronounced what Is known
10 lawyers as O5iter dictum James
Bryce and Woodrow Wilson and others
of ability almost as conspicuous hold this
view. but Mr. Ewing throws down the
gauntlet 70 them and drawing his ar
Eumcnts from many sources. demon
strates. in "a mastery and convincing
manner that they are IN error. He
gives the correct modern definition of
obiter dictum. cites decisions OF the SUI
prcmc Court TO show that a court may
decide the merits of a case and yet dis
miss the case for want of Jurisdiction
and that where the record presents two
or more points any one of which. N
sustained. would determine the case and
the court decides them an. the decision
upon amy one of the points cannot be
regarded as obiter. and contends fore
IDLY that as the case before the Supreme
Court involved an appeal as wen from
the Supreme Court of Missouri as from
the Federal court. and as I'm the trial
DO the state court the validity of the
Missouri Compromise was drawn i'm cues
zion. the freedom of SCOTS wife and
daughter depending upon the determine
ton of that question. therefore the cues
ton OF the validity OF the act was prop
erly before the supreme Court Ia the
course of his argument he saws. "The
court might have shruuk from the grave
duty which the decision of the Missouri
Compromise imposed. but TO have thus
suIrkcd would have been 90 have omitted
not alone what WAS proper to be done.
but 10 have spurned the nsistent prayers
OF those who bore that question 10 the
bar OF the court. and who incorporatea
lt IN every possible phase I'm the record
made by collision between scheming Re-
pubncans for no other purpose than Ia
have % decided by that highest tribunal %
Alr. Ewings style Is well suited TO tho
nature of his task. He writes as the
lawyer clearly correctly and 10 the
point. He makes no attempts at verbal
flights. but IS always vigorous Students
OF historical and legal questions viii bs
impressed with his knowledge of the
subject and the orderliness Of his plan
and there are but few who will come
away from a careful reading OF this booE
without broader views of matters touch
ing many of tie fundamental principles
Of our government
Nothing is more severely 10 be con-
demned than attempts. through the me-
dunn OF the pen or the tongue. 10 re-
awaken the old sectional strife; but. on
the other hand, the well-eQuipped stu
dent and historian who. with an honest
purpose 20 illuminate the events OF IN,
past. gives Of his time and energy tC