Saturday, May 2, 2009

Schwemm on Kentucky's Contribution to Dred Scott

Strader v. Graham: Kentucky's Contribution to National Slavery Litigation the the Dred Scott Decision is an article by Robert G. Schwemm, University of Kentucky College of Law. It appears in the Kentucky Law Journal (2008-2009). Here's the abstract:
In 1841, three Kentucky slaves in Louisville boarded a steamboat bound for Cincinnati. Within days, they had made their way to Detroit and then to permanent freedom in Canada. Their owner, a prominent central Kentucky businessman, soon tracked them down and tried to lure them back to bondage in the United States. When these efforts failed, he sued the steamboat owners for the value of the lost slaves in a Kentucky court.
After ten years of litigation, this case reached the U.S. Supreme Court. The Court’s decision in favor of the Kentucky slaveholder would prove to be an important precedent a few years later when the Court considered the freedom claim of another slave, Dred Scott, whose case would produce perhaps the most important decision ever handed down by the U.S. Supreme Court.
The key issue in Dred Scott - how, if at all, a Negro slave could obtain his freedom by spending time on free soil - had also been considered by the Court in prior cases. This Article deals with one of these, Strader v. Graham, 51 U.S. 82 (1851), the case brought by the Kentucky businessman whose slaves escaped on the defendants’ steamboat and the only Kentucky slave case ever to reach the Supreme Court.
This Article provides a detailed description of Strader, including its factual background, its reflection of Kentucky slave law in the first half of the nineteenth century, and its significance for Dred Scott and other subsequent slave-related matters. Part I provides an overview of Kentucky slave law as it evolved up to the time of the Strader litigation. Part II describes Strader’s factual background and the Kentucky court decisions it produced. Part III covers the Strader case in the U.S. Supreme Court. Part IV deals with post-Strader events, including a review of the Dred Scott case and the role that the Strader decision played in that litigation. Part V provides some concluding observations about how the Strader case reflected the role of slavery, law, and lawyers in antebellum Kentucky and what Strader and Dred Scott might teach us in the modern era.

1 comment:

Shag from Brookline said...

In reading this article, I looked for references to Lord Mansfield's decision in the Somerset case. The only thing that came close to it was a reference in footnote 423, at page 392, to " ... an 1836 opinion by Massachusetts Chief Justice Shaw ..." with not cite. I studied that case and it dealt with a non-fugitive slave about 10 years of age in MA with the slaveowner's wife. Somerset's case was at center in this decision. Shaw went further and let the guardians appointed by a MA probate court make the decision for the minor child regarding the choice of freedom. With Strader followed by Dred Scott, might Taney have at some point (if the Civil War had not broken out) considered that perhaps the application by a state court of Somerset regarding a non-fugitive slave would be unconstitional?