WASHINGTON, Feby. 23rd 1857.
MY DEAR SIR:
Your letter came to hand this morning. I have taken the liberty to shew it in confidence to our mutual friends Judge Wayne and the Chief Justice. We fully appreciate and concur in your views as to the desirableness at this time of having an expression of the opinion of the court on this troublesome question. With their concurrence, I will give you in confidence the history of the case before us, with the probable result. Owing to the sickness and absence of a member of the court, the case was not taken up in confidence till lately. The first question which presented itself was the right of a negro to sue in the courts of the United States. A majority of the court were of the opinion that the question did not arise on the pleadings and that we were compelled to give an opinion on the question of the Missouri compromise; and the case was committed to Judge Nelson to write the opinion of the court affirming the judgment of the court below, but leaving both those difficult questions untouched. But it appeared that our brothers who dissented from the majority, especially Justice McLean, were determined to come out with a long and labored dissent, including their opinions & arguments on both the troublesome points, although not necessary to a decision of the case. In our opinion both the points are in the case and may be legitimately considered. Those who hold a different opinion from Messrs. McLean & Curtis on the powers of Congress & the validity of the compromise act feel compelled to express their opinions on the subject, Nelson & myself refusing to commit ourselves. A majority including all the judges south of Mason & Dixon’s line agreeing in the result but not in their reasons—as the question will be thus forced upon us, I am anxious that it should not appear that the line of latitude should mark the line of division in the court. I feel also that the opinion of the majority will fail of much of its effect if founded on clashing & inconsistent arguments. On conversation with the chief justice I have agreed to concur with him. Brother Wayne & myself will also use our endeavors to get brothers Daniels & Campbell & Catron to do the same. So that if the question must be met, there will be an opinion of the court upon it, if possible, without the contradictory views which would weaken its force. But I fear some rather extreme views may be thrown out by some of our southern brethren. There will therefore be six if not seven (perhaps Nelson will remain neutral) who will decide the compromise law of 1820 to be of non-effect. But the opinions will not be delivered before Friday the 6th of March. We will not let any others of our brethren known any thing about the cause of our anxiety to produce this result, and though contrary to our usual practice, we have thought due to you to state to you in candor & confidence the real state of the matter.