Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/9

 this investigation, we would refer to the well settled rule of law, that an adjudged case is entitled to weight as authority upon those points only which were necessary to its decision. Chief Justice Marshall (and we could cite no greater name) said: "It is a general rule, expressly recognized by the court in Sturges v. Crowninshield, that the positive authority of a decision is coextensive only with the facts on which it is made." Ogden v. Saunders, 12 Wheaton, 333. To the same effect is the language of Chancellor Kent: "The expressions of every judge must be taken with reference to the case on which he decided; we must look to the principle of the decision, and not to the manner in which the case is argued upon the bench, otherwise the law will be thrown into extreme confusion." 1 Kent Com. 478. And Mr. Justice Curtis, in 1853, when delivering the unanimous opinion of the supreme court of the United States, then consisting of all the judges now upon the bench, in a case in which it was necessary to dispose of a decision of the court of appeals of Maryland, which was relied on as a binding precedent, said, that to make an opinion, on any question, a decision, "there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties, and decide to whom the property in contestation belongs. And therefore this court has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right or title in question between the parties." Carroll v. Carroll, 16 Howard, 287.

That part of the report to which we naturally first look for the point adjudged, is the head note prepared by the reporter; but Mr. Howard's abstract in this case, with its five divisions and thirty-one subdivisions, is so widely different from any form of such a note ever seen before, and contains so many positions not determined by the court, nor even affirmed by a majority of the judges, that, although it is a good synopsis of the opinion of the Chief Justice, we can derive but little aid from it in our inquiry. It is somewhat curious to compare it with the head note, by the same reporter, of a former case reported at equal length, which also excited great public interest and discussion, and in which, as in this, each of the nine judges delivered a separate opinion. We refer to the Passenger Cases, 7 Howard, 283. That head note contained only two paragraphs, and was apparently intended to show that the court, "as a court," did not decide anything; this seems to be framed to show