Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/6

 We have abstained from noticing the case till now, because we had no official report, excepting of the opinions of two of the judges. Some fault has been found with those members of the court for allowing their opinions to be printed separately. But since it is the almost uniform custom of the judges of this court to file their opinions, when delivered, with the clerk, who at once sends copies to the parties; and since there is no copyright in these opinions, as was decided in a controversy between two former reporters of the court, (Wheaton v. Peters, 8 Peters, 591;) there is no reason why they should not be published immediately.

Severe comments have also been made on the holding back of the opinions of the other judges, and on the apparent alterations made in some of them since they were pronounced. But the profession and the public are concerned to have the matured and deliberate, rather than the earliest expression of these opinions; and where the judgment itself is not affected, the parties have no ground of complaint. The individual judges alone can be injured, who, if in the majority, may find that their associates rely upon reasons and illustrations which they consider untenable, or, if in the minority, may see new arguments introduced to fortify positions to which, as originally taken, they had already replied. For an example of the ill effects of such alterations we may refer to the Passenger Cases, 7 Howard, 403, 430, where some of the judges repudiated parts of an opinion of the court, as delivered by one of their number, charged with that duty, in a former case on the same subject, and in which opinion they appeared, by the official report, to have concurred. And the danger of injustice to the minority is clearly shown by the following extract from Mr. Justice Daniel's note to his opinion in those cases.

"In the opinions placed on file by some of the justices constituting the majority in the decision of this case, there appearing to be positions and arguments which are not recollected as having been propounded from the bench, and which are regarded as scarcely reconcilable with the former then examined and replied to by the minority, it becomes an act of justice to the minority that these positions and arguments, now for the first time encountered, should not pass without comment. Such comment is called for, in order to vindicate the dissenting justices, first, from the folly of combating reasonings and positions which do not appear upon the record; and, secondly, from the delinquency of seeming to recoil from exigencies, with which, however