694
THE GREEN BAG
opinion thus: "In mew of the -importance of these cases, I do not feel that any dissent from the opinion and judgment of the court should be expressed unless the grounds of such dissent be fully disclosed." And so recently as April 10, 1905, in Muhlker v. Harlem R. Co., 197 U. S. 544. Mr. Justice Holmes, dissenting, says: "I regret that I am unable to agree with the judgment of the court, and as it seems to me to involve important principles I think it advisable to express my disagreement and to give my reasons for it." Therefore, it is that in the history-making cases, of which but a few punctuate a cen tury, our courts have been most infirm, most vacillating, most confused. Let us look for a moment at that one in which the consequences of the Dissenting Opinion have been the most deplorable in the history of American jurisprudence. In 1834, a negro slave was taken by his master, an army surgeon, from the state of Missouri, a slave state, to a military post at Rock Island, in Illinois, a free state, and was there held until 1836, when he was removed to Fort Snelling, another military post, located in that part of the Louisiana Purchase lying north of latitude 36 degrees 30 minutes north, and, under the Missouri Compromise, free soil. There he was held until 1838, when he was again removed, this time with his wife, a slave, whom he had married in 1836, at Fort Snelling, with his master's consent, together with their child, to the state of Missouri, where they ever since lived. He now claimed his free dom, on the ground that, having become free by reason of his enforced residence in a free territory and in a free state, his return to a slave state could not change his status as a free man. To this contention, his then owner re plied that the Circuit Court of the United States, in which suit was brought, had no jurisdiction of the matter, because Dred Scott was not a citizen of the state of Mis souri, being a negro of African descent,
whose ancestors were of pure African blood, brought into this country and sold as negro slaves. The Circuit Court decided against this plea, and directed the case to proceed. On the trial, the Court instructed the jury that the law was with Scott's owner, and they found that Scott was still a slave. Thereupon, he took his case to the Supreme Court of the United States. Men now promised themselves that the meaning of their Constitution, the powers of their government, the status of their slaves, were about to be peaceably but finally settled. Public excitement, the cru cial character of the issue, and the peace of a torn country, demanded that now, if ever, the voice of law should be firm and calm. "It may with truth be affirmed," says Mr. Justice Daniel, in this case, "that since the establishment of the several communities now constituting the states of this Confed eracy, there never have been submitted to any tribunal within its limits questions sur passing in importance those now claiming the consideration of this court." Let us see how that court met its high responsibility. The following analysis of the decision in this famous case is, we trust, sufficiently luminous : FIRST.—WHETHER THE QUESTION OF JURIS DICTION COULD BE CONSIDERED. TANEY (for the court) : Yes. NELSON : Such consideration is not neces sary, even though proper. GRIER: As the decision is ultimately against Scott, it matters little whether it goes upon the merits or on a question of jurisdiction. N CAMPBELL: Unimportant. (He proceeds at once to the merits.) CATRON : No. Scott had won on this point hence he has nothing to complain of, and the other side had waived its right to make the point, by pleading over on the merits. MCLEAN: Same opinion as Justice Ca-
