STRADER v. GRAHAM 10 Howard (51 U.S.) 83 (1851)

In a suit under a Kentucky statute making an abettor of fugitive slaves liable to the master for their value, defendant attempted to evade liability by arguing that the slaves, who had previously been permitted by their master, the plaintiff, to sojourn in free states, became free there and retained that status upon their return to their slave-state domicile. Defendant sought a reversal of the Kentucky Court of Appeals' determination that their slave status reattached.

On the central question, Chief Justice roger b. taney held that a state court's determination of the status of blacks was conclusive on federal courts. But he went on to assert in dictum that every state had the right to determine the status of persons within its territory "except in so far as the powers of the states in this respect are restrained, or duties and obligations imposed on them" by the federal Constitution, thus suggesting that the Constitution might somehow invalidate northern abolition statutes or statutes regulating the permissible stay of sojourning slaves. He also insisted that the northwest ordinance was defunct, its famous sixth article no longer a basis for the exclusion of slavery from the five states of the former Northwest Territory, thus suggesting that Congress might not be able to impose an enforceable antislavery condition on a territory's admission as a state.

Had the United States Supreme Court in 1857 wished to evade the controversial question raised in dred scott v. sandford of the constitutionality of congressional prohibition of slavery in the territories, it might have used Strader to hold that the determination of Scott's status by the Missouri Supreme Court was binding on federal courts. Justice samuel nelson's concurrence in Dred Scott, originally intended to be the opinion for the Court, did in fact adopt this approach.

William M. Wiecek
(1986)