Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/28

 residence in the Territory, for his stay in each place was for an equal time, and for similar purposes. The whole case being thus disposed of, the opinion on the Missouri Compromise Act was clearly extrajudicial.

A fuller demonstration of this, if desired, will be found in the opinions of the judges. The Chief Justice, on page 452, says: "As Scott was a slave when taken into the State of Illinois by his owner, and was held as such, and brought back in that character, his status, as free or slave, depended on the law of Missouri, and not of Illinois." With equal force he might have said: "As Scott was a slave when taken into the Territory of the United States by his owner, and was there held as such, and brought back in that character, his status, as free or slave, depended on the law of Missouri, and not on the act of congress." Mr. Justice Nelson, "conceding, for the purposes of the argument, that this provision of the act of congress is valid within the Territory for which it was enacted," holds "that the question involved is one depending solely upon the law of Missouri." p. 465. Mr. Justice Campbell says that "the claim of the plaintiff to freedom depends upon the effect to be given to his absence from Missouri, in company with his master, in Illinois and Minnesota, and this effect is to be ascertained by a reference to the laws of Missouri." p. 493. Mr. Justice Wayne concurs with the Chief Justice, and Justices Grier and Catron concur with Mr. Justice Nelson, pp. 454, 464, 519. These are all the judges, but one, who concur in the judgment of the court; and we thus see that four of them expressly say that the whole case is to be determined by the law of Missouri; and that the other two substantially assert the same thing, by saying that the law of Missouri disposes of any right alleged to be derived from the residence in Illinois. It is clear, therefore, that by the established doctrine of the supreme court of the United States, which we have already stated, the opinions expressed upon the validity of the Missouri Compromise Act, not being necessary to the decision, would not be regarded by that court as of any judicial authority if the question should come before them again. And Mr. Justice McLean is justified in his somewhat indignant protest: "In this case, a majority of the court have said that a slave may be taken by his master into a Territory of the United States, the same as a horse, or any other kind of property. It is true this was said by the court, as also many other things which are of no authority." "I shall certainly not regard it as such." pp. 549, 550.