Ch. 4.4. Primary Source: Strader v. Graham, SCOTUS, 1850

Until the 1830s, the landmark English decision in Somerset v. Stewart (1772), which held that a slave must be freed simply by virtue of his presence on English soil, provided a powerful precedent for limiting the law of slavery and its effects to only those jurisdictions that had slavery. American courts usually adopted this precedent, considering former slaves who resided in free states or territories to no longer be slaves—even in many cases if they subsequently returned to a slave-state.

But by the 1840s and 1850s, pro-slavery advocates used another British opinion, the Slave, Grace (1827), as a counterargument. In this case, a slave named Grace had been brought to England and lived there for a year, legally making her free. But then she returned, apparently voluntarily, to the British colony of Antigua in the Caribbean. This decision ruled that her return to a jurisdiction where slavery was recognized made her a slave again.

American pro-slavery jurists used this precedent to shape a new pro-slavery constitutionalism, according to which, as in Strader v. Graham, a person’s status as slave or free was, provided he or she was not a fugitive (i.e., a run-away slave in a free state), entirely up to the state in which the person resided at the time.

1 U.S. 82. SCOTUS, Dec., 1850. MR. CHIEF JUSTICE Roger Taney delivered the opinion of the Court.

The facts in the case, so far as they are material to the decision of this Court, are briefly as follows: The defendant in error [Christopher Graham] is a citizen of the State of Kentucky, and three negro men [George, Henry, and Reuben] whom he claimed and held as his slaves were received on board the steamboat Pike at Louisville without his knowledge or consent and transported to Cincinnati, and from that place escaped to Canada and were finally lost to him.

The proceedings before us were instituted under a statute of Kentucky in the Louisville Chancery Court against the plaintiffs in error to recover the value of the slaves which had thus escaped, and, in default of payment by them, to charge the boat itself with the damages sustained. [Jacob] Strader and [James] Gorman were the owners of the boat and [John] Armstrong the master.

The plaintiffs in error [Strader and Gorman], among other defenses, insisted that the negroes claimed as slaves were free, averring that sometime before they were taken on board the steamboat they had been sent, by the permission of the defendant in error, to the State of Ohio to perform service as slaves, and that in consequence thereof they had acquired their freedom and were free when received on board the boat.

It appears by the evidence that these men were musicians and had gone to Ohio on one or more occasions to perform at public entertainments; that they had been taken there for this purpose, with the permission of the defendant in error [Graham], by a man by the name of Williams, under whose care and direction he had for a time placed them; that they had always returned to Kentucky as soon as this brief service was over, and for the two years preceding their escape they had not left the State of Kentucky, and had remained there in the service of the defendant in error as their lawful owner.

The Louisville chancery Court finally decided that the negroes in question were his slaves and that he was entitled to recover $3,000 for his damages. And if that sum was not paid by a certain day specified in the decree, it directed that the steamboat should be sold for the purpose of raising it, together with the costs of suit. This decree was afterwards affirmed in the Court of Appeals of Kentucky, and the case is brought here by writ of error upon that judgment.

Much of the argument on the part of the plaintiffs in error has been offered for the purpose of showing that the judgment of the state court was erroneous in deciding that these negroes were slaves. And it is insisted that their previous employment in Ohio had made them free when they returned to Kentucky.

But this question is not before us. Every state has an undoubted right to determine the status, or domestic and social condition of the persons domiciled within its territory except insofar as the powers of the states in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of the United States that can in any degree control the law of Kentucky upon this subject.

And the condition of the negroes, therefore, as to freedom or slavery after their return depended altogether upon the laws of that state, and could not be influenced by the laws of Ohio. It was exclusively in the power of Kentucky to determine for itself whether their employment in another state should or should not make them free on their return. The Court of Appeals has determined that by the laws of the state, they continued to be slaves. And their judgment upon this point is, upon this writ of error, conclusive upon this Court, and we have no jurisdiction over it.

But it seems to be supposed in the argument, that the law of Ohio upon this subject has some peculiar force by virtue of the Ordinance of 1787, for the government of the Northwestern territory, Ohio being one of the states carved out of it.

One of the articles of this Ordinance provides that, “There shall be neither slavery nor involuntary servitude in the said territory…” The argument assumes that the six articles which that Ordinance declares to be perpetual are still in force in the states since formed within the territory and admitted into the Union.

If this proposition could be maintained, it would not alter the question. For the regulations of Congress, under the old Confederation or the present Constitution, for the government of a particular territory could have no force beyond its limits. It certainly could not restrict the power of the states within their respective territories… But it has been settled by judicial decision in this Court that this Ordinance is not in force… And if [it] could be regarded as yet in operation in the states formed within the limits of the Northwestern Territory, it would place them in an inferior condition as compared with the other states…

In every view of the subject, therefore, this Court has no jurisdiction of the case, and the writ of error must on that ground be dismissed.

Source: the page on this case at Justia.