Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/26

 action, and not in the county where the manor is; and this is in favor of liberty." To which Lord Coke adds, quoting from Chief Justice Fortescue: "''Impius et crudelis judicandus est, qui libertati non favet. Angliæ jura in omni casu libertati daut favorem." Co. Lit. 124 b. If Chief Justice Taney's construction of the Constitution be sound, liberty has not gained much in six hundred years, notwithstanding the extension of the rights of a "liber homo''" to all "persons."

II. Having disposed of the plea in abatement, we come to the questions raised by the statement of facts. But let us turn aside, for a moment, to consider an important point of practice. The course of the Chief Justice and of those of his associates who agreed with him in holding that the decision of the first plea disposed of the cause, but who, notwithstanding, proceeded to consider the case on its merits, was so severely criticized by the dissenting judges, that the Chief Justice and Mr. Justice Wayne, in their opinions as now printed, (pp. 427, 455,) reply quite elaborately to these comments, which officially appear to have been the last opinions delivered. The Chief Justice says, in substance, that it is the practice of every appellate court to correct all errors which appear on the record; and makes the further assertion, in which he is supported by Mr. Justice Wayne, that the cases in which the supreme court of the United States has refused to do so, after deciding against the jurisdiction, were cases which came up from the State courts, and in which, therefore, the question was, whether the supreme court itself had jurisdiction, and, if that question were decided in the negative, no right could remain to consider the other questions presented by the record; but that, as this case came from an inferior court of the United States, it was the duty of the supreme court to set that court right on all points presented on the record and argued by counsel. Although the Chief Justice, on page 429, asserts this to be the "daily practice of this court," and Mr. Justice Wayne, on page 455, says that "the cases cited by the Chief Justice," on this point, "speak for themselves," no cases are cited by the Chief Justice; and it may be safely affirmed that it is not usual for any appellate court to express an opinion on other points, after deciding a question which finally disposes of the case, unless to save further litigation between the parties in courts of the same jurisdiction. But here future litigation in courts of the same jurisdiction was impossible, for if the plea in abatement were good, these further questions could