U.S. Supreme Court
Strader v. Graham, 51 U.S. (10 How.) 82 (1851)
Strader v. Graham
1 U.S. (10 How.) 82
ERROR TO THE COURT OF APPEALS
FOR THE STATE OF KENTUCKY
Syllabus
Under the 25th section of the Judiciary Act, this Court has no
jurisdiction over the following question,
viz.,
"Whether slaves who had been permitted by their master to pass
occasionally from Kentucky into Ohio acquired thereby a right to
freedom after their return to Kentucky?"
The laws of Kentucky alone could decide upon the domestic and
social condition of the persons domiciled within its territory,
except so far 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.
The Ordinance of 1787 cannot confer jurisdiction upon this
Court. It was itself superseded by the adoption of the Constitution
of the United States, which placed all the states of the Union upon
a perfect equality, which they would not be if the Ordinance
continued to be in force after its adoption.
Such of the provisions of the Ordinance as are yet in force owed
their validity to
Page 51 U. S. 83
acts of Congress passed under the present Constitution, during
the territorial government of the Northwest territory, and since to
the constitutions and laws of the states formed in it.
The defendant in error, who was a citizen of Kentucky, filed his
bill in the Louisville Chancery Court against Jacob Strader and
James Gorman, who were citizens of Ohio and owners of the steamboat
Pike, which plied between Louisville, Kentucky, and
Cincinnati, Ohio, and John Armstrong, who was the captain of said
steamboat.
The bill alleged that the complainant was the owner of three
negro slaves, George, Henry, and Reuben, of the value of about
fifteen hundred dollars each, who had left his residence at
Harrodsburg, Kentucky, and made their way to Louisville, whence
they were taken on board of said steamboat
Pike and
carried to Cincinnati, from which place they escaped to Canada and
were lost to their owner. Complainant averred that he had a lien on
said boat by reason of the asportation of said slaves, for the
damages he had sustained, and prayed an attachment and sale of said
boat, and general relief.
An attachment was ordered and served, but the boat was relieved
upon bond's being given to perform all orders of the court or to
have the boat forthcoming.
Two of the defendants in the court below (Strader and Gorman),
in their answer, stated that they were not on board the boat at the
time of the alleged transportation, had no knowledge of such
transportation, and they therefore denied it. They alleged that the
boat was under the command of the defendant Armstrong, her captain,
and that the negroes in question had been permitted by the
complainant to travel out of the commonwealth as if free, and in an
amended answer they averred that long before the alleged
transportation, the said negroes had actually become free. The
answer of Armstrong was substantially to the same effect. There
were various proceedings had in the state courts, the case having
been twice carried to the Court of Appeals, when Graham finally
succeeded in obtaining a decree in the Louisville chancery Court
for $3,000 damages, to be paid before a day named, or the boat, her
furniture, tackle &c., to be sold if forthcoming, and if not
forthcoming, the court to make the necessary order against the
obligors, in said forthcoming bond, which decree was affirmed by
the Court of Appeals. To reverse the decree of affirmance this writ
of error was sued out.
By the statute of Kentucky approved 7 January, 1824, any master
or commander of a steamboat or other vessel who shall hire or
employ, or take as passengers on board of such
Page 51 U. S. 84
steamboat or other vessel or suffer it to be done or otherwise
take out of the limits of the commonwealth any slave or slaves
without permission of the master of such slave or slaves shall be
liable to damages to the party aggrieved by such removal, and the
steamboat or other vessel on board of which such offense was
committed shall be liable, and may be proceeded against in
chancery, and may be condemned and sold to pay such damages and
costs of suit.
The amended act, approved 12 February, 1828, extends the
remedies given by the former act so as to embrace the owners, mate,
clerk, pilot, and engineer, as well as the master, and they are
declared to be liable to the action of the party aggrieved, "either
jointly with the masters, or severally, and either at law or in
chancery."
It appeared in evidence that the negroes were the slaves of
Graham, and that they were musicians; that for their improvement in
music two of them were placed under the care of one Williams, who
was a skillful performer and leader of a band, and were permitted
to go with him to Louisville and other places and play with him at
public entertainments. The following permit was filed as an
exhibit, and proved.
"Harrodsburg, August 30, 1837"
"This is to give liberty to my boys, Henry and Reuben, to go to
Louisville, with Williams and to play with him till I may wish to
call them home. Should Williams find it his interest to take them
to Cincinnati, New Albany, or any part of the South, even so far as
New Orleans, he is at liberty to do so. I receive no compensation
for their services except that he is to board and clothe them."
"My object is to have them well trained in music. They are
young, one 17 and the other 19 years of age. They are both of good
disposition and strictly honest, and such is my confidence in them
that I have no fear that they will ever [act] knowingly wrong, or
put me to trouble. They are slaves for life, and I paid for them an
unusual sum; they have been faithful, hard-working servants, and I
have no fear but that they will always be true to their duty, no
matter in what situation they may be placed."
"C. GRAHAM, M.D."
"P.S. Should they not attend properly to their music, or disobey
Williams, he is not only at liberty, but requested, to bring them
directly home."
"C. GRAHAM"
Under this permission, Williams, in the year 1837, made several
excursions with his band, including the slaves Reuben and Henry, to
Cincinnati, Ohio, and New Albany and Madison,
Page 51 U. S. 85
Indiana, for the purpose of playing at balls or public
entertainments, after which he returned to Louisville, his place of
residence, said slaves returning with him, from which time to the
time of their escape in 1841 they had remained within the State of
Kentucky.
Page 51 U. S. 92
MR. CHIEF JUSTICE 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 is a citizen of the State of Kentucky,
and three negro men whom he claimed and held as his slaves were
received on board the steamboat
Pike at Louisville without
his knowledge
Page 51 U. S. 93
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. Strader and Gorman were the owners of the
boat and Armstrong the master.
The plaintiffs in error, 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, 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
Page 51 U. S. 94
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 otherwise than in punishment for crimes whereof the
party shall have been duly convicted, provided always that any
person escaping into the same from whom labor or service is
lawfully claimed in anyone of the original states, such fugitive
may be lawfully reclaimed and conveyed to the person claiming his
or her labor or service as aforesaid."
And this article is one of the six which the Ordinance declares
shall be a compact between the original states and the people and
states in the said territory, and forever remain unalterable unless
by common consent.
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, nor in any manner interfere with their laws
and institutions, nor give this Court any control over them. T he
Ordinance in question, if still in force, could have no more
operation than the laws of Ohio in the State of Kentucky, and could
not influence the decision upon the rights of the master or the
slaves in that state, nor give this Court jurisdiction upon the
subject.
But it has been settled by judicial decision in this Court that
this Ordinance is not in force.
The case of
Permoli v. First
Municipality, 3 How. 589, depended upon the same
principles with the case before us. It
Page 51 U. S. 95
is true that the question in that case arose in Louisiana. But
the Act of Congress of April 7, 1798, chap. 28, 1 Stat. 549,
extended the Ordinance of 1787 to the then Territory of
Mississippi, with the exception of the anti-slavery clause, and
declared that the people of that territory should be entitled to
and enjoy all the rights, privileges, and advantages granted to the
people of the territory northwest of the Ohio. And by the Act of
March 2, 1805, chap. 23, 2 Stat. 322, it was enacted that the
inhabitants of the then Territory of Orleans should be entitled to
and enjoy all the rights, privileges, and advantages secured by the
Ordinance of 1787 and at that time enjoyed by the people of the
Mississippi territory.
In the case above mentioned, Permoli claimed the protection of
the clause in one of the six articles which provides for the
freedom of religion, alleging that it had been violated by the
First Municipality. And he brought the question before this Court
upon the ground that it had jurisdiction under the Ordinance. But
the Court held that the Ordinance ceased to be in force when
Louisiana became a state, and dismissed the case for want of
jurisdiction. This opinion is indeed confined to the territory in
which the case arose. But it is evident that the Ordinance cannot
be in force in the states formed in the Northwestern Territory and
at the same time not in force in the states formed in the
Southwestern Territory, to which it was extended by the present
government. For the ordinances and pledges of the Congress of the
old Confederation cannot be more enduring and obligatory than those
of the new government, nor can there be any reason for giving a
different interpretation to the same words used in similar
instruments because the one is by the old Confederation and the
other by the present government. And when it is decided that this
Ordinance is not in force in Louisiana, it follows that it cannot
be in force in Ohio.
But the whole question upon the Ordinance of 1787, and the acts
of Congress extending it to other territory afterwards acquired,
was carefully considered in
Pollard v.
Hagan, 3 How. 212. The subject is fully examined in
the opinion pronounced in that case, with which we concur, and it
is sufficient now to refer to the reasoning and principles by which
that judgment is maintained, without entering again upon a full
examination of the question.
Indeed, it is impossible to look at the six articles which are
supposed in the argument to be still in force without seeing at
once that many of the provisions contained in them are inconsistent
with the present Constitution. And if they could be regarded as yet
in operation in the states formed within the
Page 51 U. S. 96
limits of the Northwestern Territory, it would place them in an
inferior condition as compared with the other states and subject
their domestic institutions and municipal regulations to the
constant supervision and control of this Court. The Constitution
was, in the language of the Ordinance, "adopted by common consent,"
and the people of the territories must necessarily be regarded as
parties to it, and bound by it, and entitled to its benefits, as
well as the people of the then existing states. It became the
supreme law throughout the United States. And so far as any
obligations of good faith had been previously incurred by the
Ordinance, they were faithfully carried into execution by the power
and authority of the new government.
In fact, when the Constitution was adopted, the settlement of
that vast territory was hardly begun, and the people who filled it
and formed the great and populous states that now cover it became
inhabitants of the territory after the Constitution was adopted,
and migrated upon the faith that its protection and benefits would
be extended to them and that they would in due time, according to
its provisions and spirit, be admitted into the Union upon an equal
footing with the old states. For the new government secured to them
all the public rights of navigation and commerce which the
Ordinance did or could provide for, and moreover extended to them
when they should become states much greater power over their
municipal regulations and domestic concerns than the Confederation
had agreed to concede. The six articles, said to be perpetual as a
compact, are not made a part of the new Constitution. They
certainly are not superior and paramount to the Constitution, and
cannot confer power and jurisdiction upon this Court. The whole
judicial authority of the courts of the United States is derived
from the Constitution itself and the laws made under it.
It is undoubtedly true that most of the material provisions and
principles of these six articles, not inconsistent with the
Constitution of the United States, have been the established law
within this territory ever since the Ordinance was passed, and
hence the Ordinance itself is sometimes spoken of as still in
force. But these provisions owed their legal validity and force,
after the Constitution was adopted and while the territorial
government continued, to the Act of Congress of August 7, 1789,
which adopted and continued the Ordinance of 1787 and carried its
provisions into execution, with some modifications, which were
necessary to adapt its form of government to the new Constitution.
And in the states since formed in the territory, these provisions,
so far as they have been preserved, own their validity and
authority to the Constitution of the
Page 51 U. S. 97
United States and the constitutions and laws of the respective
states, and not to the authority of the Ordinance of the old
Confederation. As we have already said, it ceased to be in force
upon the adoption of the Constitution, and cannot now be the source
of jurisdiction of any description in this Court.
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.
MR. JUSTICE McLEAN.
I agree that there is no jurisdiction in this case, and that it
must be dismissed.
The plaintiffs obtained this writ of error to reverse a judgment
of the Court of Appeals of Kentucky which affirmed the judgment of
the inferior court, in which Graham obtained a verdict and judgment
against the defendants below for three thousand dollars on the
ground that three of the servants of the plaintiff had been
conveyed from Louisville, Kentucky, to Cincinnati, in the steamboat
of defendants, by which means they escaped and the plaintiff lost
their services.
The defendants set up in their defense the Ordinance of 1787 for
the government of the Northwestern territory, which prohibited
slavery in the sixth article of the compact, and which was declared
"to be unalterable unless by common consent." The defendants
alleged that, with the permission of Graham, the slaves had been
permitted to visit Ohio and Indiana as musicians, by which they
were entitled to their freedom, although they had returned
voluntarily to their master, in Kentucky. And the right to their
freedom was asserted under the Ordinance, which, it is insisted,
brings the case within the twenty-fifth section of the Judiciary
Act of 1789, and gives jurisdiction to this Court.
The provision of the Ordinance in regard to slavery was
incorporated into the Constitution of Ohio, which received the
sanction of Congress when the state was admitted into the Union.
The constitution of the state, having thus received the consent of
the original parties to the compact, must be considered, in regard
to the prohibition of slavery, as substituted for the Ordinance,
and consequently all questions of freedom must arise under the
Constitution, and not under the Ordinance.
This, in my judgment, decides the question of jurisdiction,
which is the only question before us. And anything that is said in
the opinion of the Court in relation to the Ordinance beyond this
is not in the case, and is consequently extrajudicial
Page 51 U. S. 98
MR. JUSTICE CATRON.
The Ordinance of 1787 provides that the six articles contained
in it shall be unalterable, and remain a compact between the
original states and the people of the Northwestern territory
"unless altered by common consent."
1. The sixth article declares that slavery shall be prohibited.
2. And that absconding slaves there found shall be surrendered to
their owners.
The Constitution of Ohio incorporates the first part of the
sixth article, but leaves out the second part. The state
constitution having received the sanction of Congress, the
alteration was made by common consent, as this was the mode of
consent contemplated by the compact -- that is to say, by the
states in Congress assembled, whether under the Confederation or
present Constitution. This being an "engagement entered into"
before the adoption of the Constitution, was equally binding on the
one Congress as the other according to the sixth article of the new
Constitution, and the new Congress, equally with the former one,
had power to consent to alterations. The power to alter necessarily
involves the power to annul or to suspend, and when the state
constitution of Ohio was assented to by Congress, the article stood
suspended or abolished as an engagement among the states, and can
now only be recognized as part of the organic state law. And as
this law is drawn in question here, no jurisdiction exists to
examine the state decision.
But in regard to parts of the other five articles, I am
unwilling to express any opinion, as no part of either is in any
degree involved in this controversy.
The fourth article secured the free navigation of the waters
leading into the Rivers Mississippi and St. Lawrence, and the
carrying-places between them, as common highways, and exempted them
from tax, impost, or duty. The mouths of the two great rivers were
in possession of foreign powers, and closed to our commerce, at the
date of the Ordinance and Constitution, and therefore it was more
necessary that the tributaries should be always open, and the
carrying-places free, so that the Ohio and St. Lawrence could be
reached from the Great Lakes and back and forth either way. Some of
these tributary rivers and the carrying places, it was known, would
fall into a single new state, as contemplated by the Ordinance.
This is true of every carrying-place, and is equally true as
respects most of the rivers leading to the carrying-places, and as
Congress had only power given by the new Constitution "to regulate
commerce among the states," it is a question now unsettled whether
such inland rivers and carrying-places
Page 51 U. S. 99
could be regulated where the navigation and carrying-places
began and ended in a single state.
For thirty years, the state courts within the territory ceded by
Virginia have held this part of the fourth article to be in force,
and binding on them respectively, and I feel unwilling to disturb
this wholesome course of decision, which is so conservative to the
rights of others, in a case where the fourth article is in no wise
involved and when our opinion might be disregarded by the state
courts as
obiter, and a
dictum uncalled for. When
the question arises here on the fourth article, it is desired by me
that no such embarrassment should be imposed on this Court as
necessarily must be by now passing judgment on the force of the
fourth article and pronouncing that it stand superseded and
annulled.
Order
This cause came on to be heard on the transcript of the record
from the Court of Appeals for the State of Kentucky, and was argued
by counsel. On consideration whereof, it is now here ordered and
adjudged by this Court that this cause be and the same is hereby
dismissed for the want of jurisdiction.
