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Paul Finkelman

For the Complete Article See: Paul Finkelman, States' Rights, Southern Hypocrisy, and the Crisis of the Union, 45 Akron Law Review 513 (2011-2012) (385 Footnotes Omitted) (Student Note).


The Supreme Court heard a number of cases involving slavery in the late 1840s and 1850s. With one minor exception, slaveowners won every one of these cases and the Court overwhelmingly supported the power of Congress to assist them in recovering fugitive slaves. In Jones v. Van Zandt, a unanimous Court held that northerners could be held liable for the fugitive slaves they aided even if they did not have any notice that the person they helped was a fugitive. In this case, Van Zandt, an Ohio farmer, had given a ride to a group of slaves walking along a road in outside of Cincinnati. He was subsequently sued by the owner, Jones, for the cost of recovering them and the value of one who was never recovered. Van Zandt argued there was a presumption of freedom for everyone in Ohio and thus he could not know that the people he gave the ride to were fugitive slaves. The Court rejected this argument, essentially applying the law of the South-that all blacks were presumptively slaves-to the free states. The opinion was written by Justice Levi Woodbury of New Hampshire, and even the antislavery John McLean of Ohio accepted the result.

In Strader v. Graham, the Court considered for the first time the thorny problem of slave transit into free states. The Constitution allowed for the recovery of fugitive slaves, but said nothing about the right to voluntarily take a slave to a free state. Strader involved three slave musicians who, with the permission of their master (Graham), had traveled on a number of occasions from Kentucky to Ohio and Indiana to perform. After a number of such trips, they boarded Strader's steamboat, without Graham's permission, and escaped. Graham won a judgment in the Kentucky courts because Strader had allowed the slaves on his ship without their master's written permission, in violation of Kentucky law. On appeal, Strader argued that the slaves had become free under the Northwest Ordinance and the laws of Ohio and Indiana when Graham allowed them to go to those free jurisdictions. This argument was based on a legal theory, first developed in Somerset v. Stewart by Lord Chief Justice Mansfield, that a slave became free when taken to a free jurisdiction because there was no positive law creating slavery, and once free, the former slave was always free. By 1850, almost every northern state had adopted this rule, as had a many southern states. But by this time a number of slave state jurists and politicians had begun to question the propriety of following this rule when slaves returned from visits to free states.

In Strader, the Court faced the problem indirectly. The Kentucky courts had ruled that the status of Graham's slaves was not at issue, and whether they were entitled to their freedom for previous trips to the North could only be determined if they appeared before the state courts. But until they appeared in a Kentucky court, they were presumptively slaves. Therefore, Strader had violated Kentucky law by allowing Graham's slaves on his ship and he was liable to Graham for their value. The U.S. Supreme Court ruled that it must defer to the state of Kentucky on this matter, upholding the judgment against Graham. Under this rule, the slave states were free to decide for themselves who was a slave and who was not. In other words, the Court gave the slave states sanction to ignore free state law, and perhaps federal law, in determining who was a slave and who was not. The decision implied that the slave states could ignore the Full Faith and Credit provision of Article IV of the Constitution, just as Kentucky had ignored the constitutions of Indiana and Ohio. The true proslavery implications of this case would become apparent in Dred Scott v. Sandford, six years later.

A year after Strader, the Court clarified an aspect of the jurisprudence of fugitive slaves in Moore v. Illinois. In Prigg, the Court had struck down all state personal liberty laws. In that case, Justice Story had declared that no state could add to the requirements for the return of fugitive slaves, and thus all personal liberty laws providing due process for alleged fugitives were unconstitutional. Despite this huge victory for slavery, in a concurring opinion Chief Justice Taney complained that the decision would also prevent the free states from helping in the return of fugitive slaves. But in Moore, the Court upheld an Illinois statute which punished Illinois citizens for harboring fugitive slaves. This was one more victory for slavery.

Five years later, the Court decided Dred Scott v. Sandford, the most notoriously proslavery decision in the nation's jurisprudence. The outcome of the case-that Scott remained a slave-was plausibly correct, based, if nothing else, on Strader v. Graham. Scott claimed his freedom because he had lived in the free state of Illinois and in the Wisconsin Territory (in what later became Minnesota) where slavery was banned by the Compromise of 1820 (also called the Missouri Compromise) and various other federal laws. The Court initially planned to decide the case on the basis of Strader, and had it done so the case would probably be long forgotten. But the southerners on the Court insisted on a more comprehensive result, which led to Taney's massive and extraordinarily proslavery opinion. Speaking for the Court, Taney held that 1) slavery was a specially protected property under the Constitution; 2) free blacks could never be considered citizens of the United States and essentially had no rights under the Constitution; 3) that Congress had no power to ban slavery in the federal territories; 4) no law in the territories could free slaves because that would be an unconstitutional taking under the Fifth Amendment; and 5) that the Missouri Compromise unconstitutionally banned slavery in the federal territories, and by implication the ban on slavery in the Act creating the Oregon Territory was also unconstitutional. This was a sweeping proslavery opinion that settled the issue of slavery in the territories by allowing slavery in all the territories.

A concurring opinion by Justice Nelson of New York also directly telegraphed how the Court would rule on the issue of slave transit. Nelson noted at the very end of his opinion:

A question has been alluded to, on the argument, namely: the right of the master with his slave of transit into or through a free State, on Business or commercial pursuits, or in the exercise of a Federal right, or the discharge of a Federal duty, being a citizen of the United States, which is not before us. This question depends upon different considerations and principles from the one in hand, and turns upon the rights and privileges secured to a common citizen of the republic under the Constitution of the United States. When that question arises, we shall be prepared to decide it.

The implication was clear: as soon as the Court had an opportunity, it would guarantee that masters could travel anywhere in the United States with their slaves. In his House Divided Speech, Abraham Lincoln predicted that the logic of Dred Scott would lead to legalizing slavery in the North through the next Dred Scott decision. Nelson's opinion certainly made this seem likely.

The final presecession decision on slavery was Ableman v. Booth, arguably the most anti-states' rights decision since Martin v. Hunter's Lessee, McCulloch v. Maryland, and Cohens v. Virginia. But the difference between the cases is striking. Martin, McCulloch, and Cohens were seen as attacks on the sovereignty of southern states, leading to complaints by some Virginians that the Court had eviscerated the rights of the states. Ableman was directed at northern states and supported the Fugitive Slave Law of 1850. The case began when Sherman Booth, an antislavery editor in Milwaukee, helped lead a mob that rescued a fugitive slave name Joshua Glover, who had been in federal custody. United States Marshal Stephen Ableman then arrested Booth. At this point, the Wisconsin Supreme Court intervened, freeing Booth with a writ of habeas corpus. There, the Wisconsin Court declared that the Fugitive Slave Law of 1850 was unconstitutional. The Wisconsin Supreme Court then refused to send a record of the case to the U.S. Supreme Court. Thus, the U.S. Supreme Court did not decide the case until 1859, when Chief Justice Taney emphatically asserted:

No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or to require him to be brought before them. And if the authority of a State, in the form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.

Northern states' rights claims would gain no support from the Supreme Court. Nor was the U.S. Supreme Court troubled by the Fugitive Slave Law of 1850. Speaking for a unanimous Court, Taney unambiguously proclaimed: the act of Congress commonly called the fugitive slave law is, in all of its provisions, fully authorized by the Constitution of the United States. Taney noted that the Wisconsin Supreme Court had asserted its supremacy over the federal courts. This astounded the Chief Justice as he noted:

These propositions are new in the jurisprudence of the United States, as well as of the States; and the supremacy of the State courts over the courts of the United States, in cases arising under the Constitution and laws of the United States, is now for the first time asserted and acted upon in the Supreme Court of a State.

Ableman was a strongly nationalist opinion-as strong as anything Justice Joseph Story or Chief Justice John Marshall might have written. But it was proslavery nationalism. It upheld the Fugitive Slave Law of 1850 and emphatically rejected the antislavery jurisprudence of a northern state. It was a decision slaveowners loved.