“What the Dred Scott Case Decided, and what it did not Decide,” New York Times, July 16, 1857, p. 2.
Boston (MA) Law Reporter
New York Daily Times
What the Dred Scott Case Decided, and what it did not Decide
The following text is presented here in complete form, as it originally appeared in print. Spelling and other typographical errors have been preserved as in the original.
What the Dred Scott Case Decided, and what it did not Decide.
The Boston Law Reporter for June contains a very able and thorough review of the Dred Scott “Decision,” which will enable the reader to know what the Supreme Court has decided in that important case, far more readily and clearly than he can learn from the official report itself. In fact, the review has done just what the reporter, Mr. HOWARD, in quite a long and confused head-notes, attempted, but failed to accomplish.
Those, also, who desire to understand, not merely the points of the so-called decision really decided, but what it did not decide, will do well to consult the Law Reporter’s article, the authorship of which is ascribed to HORACE 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 a Negro be a citizen of the United States?’ It 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 a decision. Four of the nine judges though 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 it in the affirmative. Of the Judges who gave no opinion on the point one (Judge McLean) declares that if he answered the question at all it would be in the affirmative; Judge CATRON, when Chief Justice of the Supreme Court of Tennessee, gave an opinion directly involving an affirmative answer to the question; the three other judges gave no clue to their opinions. On this question then, the Court stands thus: Three in the affirmative, three in the negative, and three silent.
“Secondly- Was the Missouri Compromise Constitutional? It is a perfectly 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 a precedent which was nit necessary to the determination of the question before it. Anything beyond 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 establishing the law, nothing is yet settled or can be settled.’ Bearing this in mind, let us look at the facts of the case. SCOTT was a slave in Missouri; was taken by his master to Illinois, and 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 a slave, now that he has returned thither. If this be so, what matters it whether the compromise was valid or invalid? 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 opinion on this point, could a plainer instance be found of an opinion on a point not necessary to the determination of the rights of the parties?
The Court, then, has not decided that the Missouri Compromise was unconstitutional.
Thirdly- This case is often spoken of as deciding that a master may take his slave to a free State and there hold him as a slave. This is a simple mistake; there is no such point decided. But
Fourthly- The doctrine is here established that, if a slave be taken by his master to a free State, and does not there claim his liberty, but consents to return with his master to a slave State, he may be held as a slave there, if the higher court or that State considers him still to be a slave. In other words, the Dred Scott case does not decide that a Negro is a slave in a Free State because he was a slave in the State from which he was brought; nor that a slave carried from a slave to a free State and brought back, is free because he might have claimed his freedom in the free State; nor that he necessarily is a 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.”