Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/52

 are collected. The best statement of the law of Massachusetts, that we have seen, is by President Tucker of the court of appeals of Virginia, who, after alluding to the case of the Slave Grace, said: "In Massachusetts, however, it seems that the Constitution of the State must have been interpreted to have a more extensive operation; as it appears to have been decided, that the issue of a female slave, though born prior to the Constitution, was free. 2 Kent Com. 205. If this be so, the Constitution has received an interpretation, which goes to divest the title of the master, to break the bonds of the slave, and to annul the condition of servitude. It emancipates and sets free, by its own force and efficacy, and docs not await the enforcement of its principles by judicial decision. It is more operative than the common law, and more resembles the effect of our statute, declaring free all slaves imported contrary to law." Betty v. Horton, 5 Leigh, 623.

We have discussed this question with some care, because Justices Nelson, Daniel, and Campbell intimate opinions that, on general principles, independently of the decisions in Missouri, Scott was a slave after his return, and as Justices Grier and Catron concur generally with Mr. Justice Nelson, such may perhaps be taken to be the opinion of a majority of the judges. But this opinion is not even suggested by the Chief Justice or Mr. Justice Wayne, and is not entitled to the weight of judicial authority, because it was not necessary to the decision of the case. For we must constantly bear in mind the rule, affirmed by Chief Justice Marshall, that "the positive authority of a decision is coextensive only with the facts on which it is made." And one most important fact in this case, the effect of which yet remains to be considered, is that the plaintiff, after his return, being then an inhabitant of Missouri, had been declared by the supreme court of that State to be a slave. The decision of that court, not being in form a final judgment, but merely an order granting a new trial, did not, of course, determine the plaintiff's right to freedom, which was the fact in dispute between the parties; but it is evidence of the law of Missouri on the question, and as such is much relied on by the majority of the judges of the supreme court of the United States.

V. That the plaintiff, at the time of bringing his suit in the State court, as well as of suing in the circuit court of the United States, was an inhabitant, and in every sense of the word, a subject, of Missouri, cannot be doubted. It is clear upon the principles and authorities which we