DICTUM (also, Obiter Dictum). An opin ion expressed by a court upon some question of law which is not necessary to the decision of the case before it.
It frequently happens that, in assigning its opin ion upon, a question before it, the court discusses collateral questions and expresses a decided opinion upon them. Such opinions, however, are frequently given without much reflection or without previous argument at the bar ; and as, moreover, they do not eater into the adjudication of the point at issue they have only that authority which may be ac corded to the opinion, more or less deliberate, of the individual judge who announces it. Chase, Bla. Com. 36, n. It may be observed that in recent times, 'particularly in those jurisdictions where appeals are largely favored, the ancient practice of courts in this respect is much modified. Formerly, judges aimed to confine their opinion to the precise point involved; and were glad to make that point as nar row as it might justly be. Where appeals are fre quent, however, a strong tendency may be seen to fortify the judgment given with every principle that can he invoked in its behalf,—those that are merely collateral, as well as those that are necessarily in volved. In some courts of last resort, also, when there are many judges, it is not unfrequently the case that, while the court come to one and the same conclusion, the different judges may be led to that conclusion by different views of the law, so that it becomes difficult to determine what is to be regarded as the principle upon which the case was decided and what shall be deemed mere dicta.
It is not easy to define the term with such precision as to afford an. exact crite rion by which to decide when the language of a court or judge is entitled to be con sidered as a precedent and followed as an authority. Judicial references to the sub ject indicate that expressions which would be included under the term dicta are never theless afterwards treated by other courts with respect if not with the binding force of adjudicated cases. Possibly no better definition can be found than that of Folger, J., in Rohrbach v. Ins. Co., 62 N. Y. 58, 20 Am. Rep. 451: "Dicta are the opinions of a judge which do not embody the resolution or determination of the court, and, made with out argument or full consideration of the point, are not the professed, deliberate deter minations of the judge himSelf; &iota are such opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects."
The general rule, broadly stated by the United States supreme court, is that to make an opinion 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, therefore. this court has never held itself bound by any part of an opinion which was • not needful to the ascertainment of the ques tion between the parties." Per Curtis, J., in Carroll v. Carroll, 16 How. 287, 14 L. Ed. 936. And in Cohens v. Virginia, when the case of Marbury v. Madison, 1 Cra. 137, 2 L. Ed. 60, was very earnestly pressed upon the attention of the court, Marshall, C. J., said : "It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go be yond the case, they may be respected, but ought not to control the judgment in a sub sequent case when the very point is present ed;" 6 Wheat. 399, 5 L. Ed. 257. In In re City Bank, 3 How. 292, 11 L. Ed. 603, Catron, J., dissenting, strongly criticised the majority of the court for a long discussion of the pow er of a court as to which they decided that they had no authority to review its decisions. In a later case the same court said, in refer ence to an allusion to the opinion in a case previously decided, "This was the only ques tion before the court and the decision is au thority only to the extent of the case before it ; . . . if more was intended by the judge who delivered the opinion it was pure ly obiter;" U. S. v. County of Clark, 96 II. S. 211, 24 L. Ed. 628. The great powers and peculiar functions included in the constitu tional powers of that court, as well as the conclusiveness of its judgments as declara tions of constitutional construction, make it not only pi•oper but essential that its deci sions should be confined to the points neces sarily involved in the case and embraced in the argument. And the same reasons not only warrant but require a rigid exclusion of mere dicta from the category of authorities. The reason for the enforcement of the rule, as against expressions of opinion upon points not fairly raised by the case, is stated by the supreme court of Pennsylvania : "What I have said or written outside of the case try ing, or shall say or write in such circum stances, may be taken as my opinion at the time, without argument or full consideration; but I will not consider myself bound by it when the point is fairly trying and fully argued and considered." Per Huston, J., Frants v. Brown, 17 S. & R. 287.