“DICTA” AND “DECISION.”

Another plea, which, however, was rather in the shape of an apology for the Dred Scott decision, was that all that part against which the great objection was made was mere “obiter dicta,” ^{38Even Bryce, at this late day, sanctions this view (“Am. Com.,” chapter 24, par. 5 and note; and chapter 53, par. 15, note.). But however that may be as to the Dred Scott decision, there is no kind of ground for any such view fairly to be taken as to the “Christian nation” decision.} that is, things said only by the way, or in passing; that it was “extra-judicial,” and therefore of no real force in law, and so there was no need of paying any particular attention to it nor of raising any opposition against it. This plea Lincoln defined as “a little quibble among lawyers between the words ‘dicta’ and ‘decision,’” ^{39His exact words are: “I undertake to give the opinion, at least, that if the Territories attempt by any direct legislation to drive the man with his slave out of the Territory, or to decide that his slave is free because of his being taken in there, or to tax him to such an extent that he cannot keep him there, the Supreme Court will unhesitatingly-decide all such legislation unconstitutional as long as that Supreme Court is constructed as the Dred Scott Supreme Court is. The first two things they have already decided, except that there is a little quibble among lawyers between the words ‘dicta’ and ‘decision.’ They have already decided that the negro cannot be made free by territorial legislation.”-Columbus, O., Speech, 1859; Id., pp. 475, 476.} and replied to it as follows:-ROP 176.1

“I know the legal arguments that can be made,-that after a court has decided that it cannot take jurisdiction in a case, it then has decided all that is before it, and that is the end of it. A plausible argument can be made in favor of that proposition; but I know that Judge Douglas has said in one of his speeches that the court went forward, like honest men as they were, and decided all the points in the case. If any points are really extra judicially decided because not necessarily before them, then this one as to the power of the Territorial Legislature to exclude slavery is one of them, as also the one that the Missouri Compromise was null and void. They are both extra-judicial, or neither is, according as the court held that they had no jurisdiction in the case between the parties, because of want of capacity of one party to maintain a suit in that, court.ROP 176.2

“I want, if I have sufficient time, to show that the court did pass its opinion; but that is the only thing actually done in the case. If they did not decide, they showed what they were ready to decide whenever the matter was brought before them. What is that opinion? After having argued that Congress had no power to pass a law excluding slavery from a United States Territory, they then used language to this effect, That inasmuch as Congress itself could not exercise such a power, it followed as a matter of course that it could not authorize a territorial government to exercise it; for the territorial Legislature could do no more than Congress could do. Thus it expressed its opinion emphatically against the power of a territorial Legislature to exclude slavery, leaving us in just as little doubt upon that point as upon any other point they really decided.”-Jonesboro, Ill., Debate, September 15, 1858; Id., pp. 271, 272.ROP 176.3

And again:-ROP 177.1

“There is no sort of question that the Supreme Court has decided that it is the right of the slaveholder to take his slave and hold him in the Territory; and saying this, Judge Douglas himself admits the conclusion. He says, ‘It this is so, this consequence will follow;’ and because this consequence would follow, his argument is, ‘The decision cannot, therefore, be that way-that would spoil my popular sovereignty, and it cannot be possible that this great principle has been squelched out in that extraordinary way. It might be, if it were not for the extraordinary consequences of spoiling my humbug.’”-Columbus, O., Speech, 1859; Id., p. 477.ROP 177.2