P o l i t i c a l Economy Working Paper
171
THE COURTS AND SLAVERY IN THE UNITED STATES
PROPERTY RIGHTS AND CREDIBLE COMMITMENTS
THE COURTS AND SLAVERY IN THE UNITED STATES
JOHN N. DROBAK*
PROPERTY RIGHTS AND CREDIBLE COMMITMENTS
ABSTRACT
by
John N. Drobak
Professor of Law
Fellow, Center i n P o l i t i c a l Economy
Washington U n i v e r s i t y
St. Louis, M i s s o u r i 63130
July
1992
Recent l i t e r a t u r e has examined the r o l e of Congress in
c r e a t i n g a c r e d i b l e commitment to the i n s t i t u t i o n of slavery i n
the antebellum United States.
This paper explains the
contributions of the courts to that commitment.
The paper f i r s t
shows the d i s p a r i t y i n the r u l i n g s between the s t a t e courts i n
the North and South in cases concerning the freedom of
nonresident s l a v e s . Then the paper examines the attempts by the
f e d e r a l courts to strengthen the n a t i o n a l commitment to slavery
and m i t i g a t e the a n t i - s l a v e r y conduct of the North. The paper
concludes by showing the f u t i l i t y of the d e c i s i o n i n Dred Scott,
an opinion that f a i l e d in i t s attempt to r e i n f o r c e the f e d e r a l
government's commitment to s l a v e r y because the courts could not
overcome the decades of increasing h o s t i l i t y to slavery.
Not
only d i d the Supreme Court i n Dred Scott f a i l to placate the
South, the Court exacerbated the tension between the North and
South and helped move the country even c l o s e r to c i v i l war.
The
episode described i n t h i s paper i l l u s t r a t e s how sometimes a
government i n s t i t u t i o n can no longer make a formal commitment
c r e d i b l e when the p u b l i c has renounced that commitment.
t h e i r r i g h t s i n t h i s species o f property.
This
C o n s t i t u t i o n , and these laws enforcing i t , are binding on
the conscience of every good c i t i z e n and honest man, so long
as he continues to be a c i t i z e n of the United States or of
Pennsylvania, while Pennsylvania continues to be a member of
t h i s Union.
Those who are u n w i l l i n g to acknowledge the
o b l i g a t i o n s which the law of the land imposes upon them
should migrate to Canada, or some country whose i n s t i t u t i o n s
they p r e f e r , and whose i n s t i t u t i o n s do not i n f r i n g e upon
t h e i r tender consciences.
But while they claim the b e n e f i t s
of the Union they cannot repudiate i t s o b l i g a t i o n s . The
people of Pennsylvania are opposed to the i n s t i t u t i o n of
s l a v e r y and have abolished it within t h e i r borders.
But
they acknowledge the r i g h t of other states to make t h e i r own
i n s t i t u t i o n s , and the o b l i g a t i o n s imposed upon them and the
o b l i g a t i o n s imposed upon us to regard the solemn compact
which we have made with the s i s t e r s t a t e s .
( O l i v e r v.
Kauffman. 18 Fed. Cas. at 661.)
The famous compromises of the f i r s t h a l f of the nineteenth
century are well-known examples of Congress's attempt to
r e i n f o r c e the c r e d i b i l i t y of the commitment to the i n s t i t u t i o n of
slavery that was written
i n t o the
Constitution.
The
compromises
allowed the expansion of s l a v e r y i n t o some t e r r i t o r i e s and
maintained the power of the s l a v e s t a t e s in the Senate through
the balance r u l e .
(Weingast.)
Less known, however, i s the r o l e
played by the f e d e r a l courts in r e a f f i r m i n g the c o n s t i t u t i o n a l
commitment to s l a v e r y .
of the North,
Beginning in the 1830's, the s t a t e courts
through t h e i r i n t e r p r e t a t i o n of s t a t e s t a t u t e s and
t h e i r development of the common law, began to r u l e with
increasing h o s t i l i t y to the r i g h t s of slaveowners.
The s t a t e
courts in the South responded by g i v i n g l e s s deference to these
northern r u l i n g s and e v e n t u a l l y d i s r e g a r d i n g them.
As the chasm
grew between the s t a t e courts of the North and South, the f e d e r a l
courts, i n c l u d i n g those in the northern s t a t e s , worked at
maintaining and sometimes strengthening the f e d e r a l government's
commitment to preserve s l a v e r y .
f e d e r a l courts in the free s t a t e s faced the d i f f i c u l t y
of g e t t i n g a n t i s l a v e r y j u r i e s to enforce the pro-slavery law.
The charge to the j u r y in O l i v e r v.
Dred Scott v. Sandford, the best known of these cases.
Scott.
Dred
although r e s t i n g h e a v i l y on p r i n c i p l e s of s t a t e s '
rights,
took a new and powerful approach by c o n s t i t u t i o n a l i z i n g property
r i g h t s in slaves through the due process clause.
Dred Scott, dramatic and inflammatory to the North,
seeds
for further constitutional
The approach in
l a i d the
(and therefore federal)
l i m i t a t i o n s on the power of the free states.
Lincoln,
in h i s
campaign f o r the presidency, expressed the fear of many
As the s e c t i o n a l c o n f l i c t grew worse i n the mid-nineteenth
century,
The work of the f e d e r a l courts reached i t s culmination in
Kauffman i l l u s t r a t e s the
concern:
[0]ne of the great objects of t h i s Union, and the
C o n s t i t u t i o n , which we are bound to support, and which is
the supreme law of the land, i s to make us i n many respects
one people or nation.
And it is well-known t h a t the
southern states would not have become p a r t i e s to t h i s Union,
but f o r the solemn compact of the other s t a t e s to p r o t e c t
northerners t h a t Dred Scott could give t r u t h to John C. Calhoun's
claim that "slavery
(1), p. 263.)
is n a t i o n a l ,
freedom s e c t i o n a l . "
(Finkelman
T h i s commitment in Dred Scott to the p r e s e r v a t i o n
of s l a v e r y was so r a d i c a l to the North that the d e c i s i o n became
one of the events that pushed the country i n t o war three years
later.
I r o n i c a l l y , the d e c i s i o n did l i t t l e to placate the South.
By 1857, when the Supreme Court decided Dred Scott, decades of
ever i n c r e a s i n g h o s t i l i t y towards slavery had made i t too l a t e
for the courts to make the f e d e r a l commitment to s l a v e r y
c o n f l i c t between North and South i s only a chapter i n a much
credible.
larger story.
The
pro-slavery p r o v i s i o n s of the C o n s t i t u t i o n and the f e d e r a l
l i k e l i h o o d of s u c c e s s f u l compromise and influenced the pace at
which the country moved toward war.
This paper w i l l examine the courts' r o l e i n the commitment
statutes c a r r y i n g them out sometimes gave l i t t l e choice to a
judge, so a judge who was staunchly a n t i s l a v e would o c c a s i o n a l l y
of the f e d e r a l government to the preservation of s l a v e r y .
end up authoring a pro-slavery opinion.
d e s c r i b i n g the c o n s t i t u t i o n a l
1
The
courts shaped some aspects of the slavery c r i s i s , a f f e c t e d the
The actions of the courts r e f l e c t , of course, both the
governing law and the p a r t i c i p a n t s in the j u d i c i a l process.
But it is nonetheless an important chapter.
It was a l s o to be
framework f o r slavery,
After
the paper
expected that f e d e r a l courts s i t t i n g in northern s t a t e s would
w i l l analyze the tension between the courts of the free and slave
render d e c i s i o n s that supported slavery more than t h e i r s t a t e
states and e x p l a i n the importance of the f e d e r a l courts'
court counterparts.
to counteract the decisions of the northern s t a t e courts.
Many of the presidents who appointed the
f e d e r a l judges were themselves pro-slavery.
And the s t a t e judges
attempts
The
paper w i l l end by examining the impact of these court d e c i s i o n s
were l e s s apt to hear c o n t r o v e r s i e s that were governed by the
on the t e n s i o n between the North and South on the eve of the
pro-slavery f e d e r a l law.
Civil
Both the a b o l i t i o n i s t s and the pro-
War.
slavery forces used the courts to develop the law in t h e i r favor.
Some of the most able advocates of the day took part i n many of
the slavery s u i t s , i n t e n t i o n a l l y l i t i g a t i n g far-reaching
principles.
1.
The Constitution
Any a n a l y s i s of the r o l e of the courts must s t a r t with the
S i m i l a r l y , many of the most powerful s l a v e r y
Constitution.
Even though the Framers were too squeamish to use
opinions were written by h i g h l y respected judges on p r e s t i g i o u s
the words s l a v e or s l a v e r y , there is no doubt that the
courts, j u s t as some were authored by pro-slavery Democrats who
C o n s t i t u t i o n accommodated the existence of s l a v e r y at the time
were r i d i c u l e d f o r l e t t i n g t h e i r personal ideology take
the document was w r i t t e n and established l e g a l p r i n c i p l e s that
precedence over the law.
would be used to preserve it i n t o the future.
F i n a l l y , i t i s important t o remember
that courts seldom are the source of s o c i a l change.
The work of
the courts r e f l e c t s the changes that are being d r i v e n by
p o l i t i c a l , economic, i d e o l o g i c a l and r e l i g i o u s f a c t o r s .
t r u l y the case with slavery.
the C o n s t i t u t i o n d e a l t with slavery i n some way.
The best known
are the clauses that counted slaves as t h r e e - f i f t h s f o r v o t i n g
That was
The story of the courts in the
3
Nine clauses of
and t a x a t i o n purposes, the sentence that gave Congress the power
to ban the importation of slaves a f t e r 1807,
4
and the s e c t i o n that
required the return of f u g i t i v e slaves.
Other clauses empowered
cotton g i n and the b i r t h of the cotton economy i n the South at
Congress to suppress i n s u r r e c t i o n s (which to a t l e a s t some of the
the beginning of the nineteenth century induced a g i g a n t i c
Framers meant slave u p r i s i n g s ) , l i m i t e d amendment of the slave
expansion of slavery and made slavery too p r o f i t a b l e to end on
trade and proportionate taxation sections u n t i l
i t s own.
1808,
and
(Fogel, pp. 29-34.)
Likewise, regardless of whatever
p r o h i b i t e d the t a x a t i o n of exports (which could have been an
the o r i g i n a l
i n d i r e c t tax on s l a v e r y through taxation of the products of slave
governance of s l a v e r y , the uncertainty over the p r e c i s e terms of
labor) .
the C o n s t i t u t i o n ' s accommodation of slavery and the power l e f t to
2
i n t e n t of the Framers concerning the Constitution's
the s t a t e s in the o r i g i n a l federal structure both provided the
There has long been great debate on whether the Framers
intended to preserve s l a v e r y or only accommodated it as a
courts with ways to r e i n f o r c e the federal government's commitment
temporary phenomena with the expectation of i t s w i t h e r i n g away.
to s l a v e r y .
Following the views of William Lloyd Garrison that the
2.
C o n s t i t u t i o n united the states by a "covenant with death" and
"agreement with H e l l , " the r a d i c a l a b o l i t i o n i s t s saw no hope f o r
u n i v e r s a l freedom under the Constitution.
A.
Comity and State Sovereignty
Commitment to Slavery in the South
Perhaps the aspect of the C o n s t i t u t i o n that supported
Consequently, many
r a d i c a l a b o l i t i o n i s t s in the 1830's supported secession of the
slavery to the f u l l e s t was the Constitution's s i l e n c e on the
f r e e from the slave s t a t e s .
issues of who was a slave and how a slave became f r e e .
(Potter, p. 45; Wieck, p. 35.)
But
the black a b o l i t i o n i s t Frederick Douglass claimed that
the Federal Government was never, in i t s essence, anything
but an a n t i - s l a v e r y government. Abolish s l a v e r y tomorrow,
and not a sentence or s y l l a b l e of the C o n s t i t u t i o n need be
altered.
It was purposely so framed as to give no claim, no
sanction to the claim, of property in man.
If in i t s o r i g i n
s l a v e r y had any r e l a t i o n to the government, it was only as
the s c a f f o l d i n g to the magnificent s t r u c t u r e , to be removed
as soon as the b u i l d i n g was completed.
(Quoted in Jensen,
pp. 9-10.)
l e a v i n g these issues untouched,
leave them to the s t a t e s .
By
the C o n s t i t u t i o n continued to
I t i s i r o n i c that the B i l l of Rights,
through the tenth amendment's admonition t h a t a l l powers not
delegated to the f e d e r a l government remain with the s t a t e s or the
people,
expressed the notion of l i m i t e d f e d e r a l a u t h o r i t y , which
would r e s u l t i n nearly a l l issues o f slavery remaining within
Even today s c h o l a r s continue t h i s debate over the Framer's
state c o n t r o l .
expectations.
enslaved or free was a l s o consistent with the common law's
3
Regardless of any hopes in 1787 f o r the gradual demise of
slavery, technology made that impossible.
5
The invention of the
Leaving to the states the issue of who was
treatment of status as a l o c a l issue.
The f e d e r a l government has always l e f t issues of status to
6
the s t a t e s .
Even today, it is s t a t e law t h a t determines whether
s l a v e r y would become i l l e g a l i n the South, although the
someone i s divorced, whether a c h i l d i s l e g i t i m a t e , whether a
a b o l i t i o n i s t s hoped otherwise.
p a r t i c u l a r parent has custody and whether someone q u a l i f i e s as an
Republican leaders,
heir.
any expansion of slavery,
Although it may seem inappropriate today to i n c l u d e
President Lincoln and the
who rode to v i c t o r y on t h e i r opposition to
t r i e d to avert war by supporting a
s l a v e r y with these issues, whether someone is a s l a v e or f r e e is
c o n s t i t u t i o n a l amendment to preserve slavery i n the slave s t a t e s .
l e g a l l y an issue of the person's status, h i s t o r i c a l l y l e f t to the
(Potter, pp. 550, 565.)
states u n t i l the t h i r t e e n t h amendment abolished s l a v e r y .
so a s t o n i s h i n g to us today, would have been e s s e n t i a l l y an
State c o n t r o l over the existence of s l a v e r y a l s o stemmed
from the common law view that slavery was against "natural law"
and thus could not l e g a l l y e x i s t without " p o s i t i v e "
statutory)
law authorizing i t s existence.
ri.e..
This notion was
This proposed c o n s t i t u t i o n a l amendment,
express c o d i f i c a t i o n of the then-prevailing view of the l e g a l i t y
of s l a v e r y in the South.
B.
Slaveowners' Rights in the North
The controversy over the expansion of slavery i n t o the
i n s t i l l e d i n the American common law by the famous case of
t e r r i t o r i e s is well-known from a l i t a n y of important h i s t o r i c a l
Somerset v.
events:
in 1772.
Stewart,
which g r e a t l y c u r t a i l e d s l a v e r y in England
As Lord Mansfield,
the Chief J u s t i c e of the Court of
the M i s s o u r i Compromise in 1820, the Compromise of 1850,
the Kansas-Nebraska Act in 1854, the 1857 Dred S c o t t d e c i s i o n ,
Lincoln's e l e c t i o n in 1860,
the King's Bench, wrote in Somerset;
and the f a i l e d attempts at the
Crittenden compromise on the eve of the C i v i l War.
But at the
"The s t a t e o f slavery i s o f such a nature, t h a t i t i s
incapable of being introduced on any reasons, moral or
p o l i t i c a l ; but only by p o s i t i v e law, which preserves i t s
force long a f t e r the reason, occasion, and time i t s e l f from
whence i t was created, i s erased from memory:
i t ' s so
odious, that nothing can be suffered to support i t , but
p o s i t i v e law.'! (Somerset, p. 510.)
borders and the extent to which the C o n s t i t u t i o n compelled them
These three f a c t o r s — the Constitution's i m p l i c i t
to support the i n s t i t u t i o n of slavery.
same time,
another dispute over slavery was slowly growing — the
a b i l i t y of the free states to free slaves who came within t h e i r
This was a dispute over
recognition of a state's authority to determine whether slavery
the r e l a t i v e importance of state sovereignty,
w i l l b e l e g a l within i t s borders, the h i s t o r i c a l a l l o c a t i o n o f
federalism in the s t a t e s themselves, not in the t e r r i t o r i e s .
issues of status to state c o n t r o l , and the need f o r p o s i t i v e law
Congress took the lead in the dispute over the t e r r i t o r i e s , while
to l e g a l i z e slavery — a l l gave strong l e g a l support f o r the
f e d e r a l and s t a t e courts were the key players in the controversy
slave states to maintain the existence of s l a v e r y .
between the s t a t e s .
Throughout
the antebellum slavery c r i s i s , there was no r e a l l i k e l i h o o d that
7
comity and
H i s t o r i c a l l y , a state's authority to a f f e c t the status of
8
1
someone w i t h i n i t s borders depended upon the degree of permanence
1790's, the nation's c a p i t a l .
of that person's connection with the s t a t e .
v i s i t s and temporary residence by many slaveowners and t h e i r
There was no doubt
that a person's p h y s i c a l presence in the s t a t e ,
coupled with the
i n t e n t i o n to remain permanently, was enough f o r a s t a t e to use
i t s a u t h o r i t y to determine s t a t u s .
So if a slaveowner moved with
slaves.
In
As a r e s u l t ,
it was the s i t e of
(Finkelman (1), pp. 46-47.)
1780,
Pennsylvania
enacted
an
emancipation
statute
that
attempted to end s l a v e r y without hindering economic growth.
The
h i s slaves to a free s t a t e and became a resident of t h a t s t a t e ,
s t a t u t e freed the c h i l d r e n of Pennsylvania slaves upon b i r t h but
the
required them to remain apprentices u n t i l they turned 18.
free s t a t e s viewed themselves as having the l e g a l
to f r e e the s l a v e s .
authority
On the other hand, if a slaveowner journeyed
through a f r e e s t a t e with h i s slaves,
at l e a s t i n t o the 1840's,
Members of Congress and diplomats were permitted to r e t a i n t h e i r
domestic s l a v e s .
Other people were allowed to remain in the
the f r e e s t a t e s would not a l t e r the status of a slave in t r a n s i t .
s t a t e f o r up to s i x months with t h e i r slaves.
The more d i f f i c u l t issues i n v o l v i n g the r e q u i s i t e connection
Pennsylvania longer was freed.
between the s l a v e and the s t a t e arose in the context of a
of new Pennsylvania residents the instant they became r e s i d e n t s .
slaveowner's l e s s than permanent presence in a f r e e s t a t e with a
(Finkelman (1), p. 48.)
s l a v e , such as a slaveowner's temporary six-month or even s i x week v i s i t to a f r e e s t a t e with a slave.
Any slave kept i n
An amendment i n 1788 freed slaves
The emancipation statute led to considerable l i t i g a t i o n over
the years, much i n s t i g a t e d by the A b o l i t i o n Society, to resolve
The r i g h t s given t o v i s i t i n g slaveowners i n Pennsylvania i s
questions unanswered by the s t a t u t e .
These questions included,
t y p i c a l of the r i g h t s of slaveowners throughout the North u n t i l
f o r example, such issues as what c o n s t i t u t e d residency, making
the mid-1830's.
the six-month period i n a p p l i c a b l e , and whether a s e r i e s of v i s i t s
Pennsylvania was a leader among the s t a t e s i n
the movement t o free the slaves even before the enactment of the
to Pennsylvania could aggregate to s i x months.
Constitution.
Pennsylvania courts broadly c a r r i e d out the state's p o l i c y toward
P h i l a d e l p h i a was the home of the country's f i r s t
Although the
a c t i v e a n t i s l a v e s o c i e t y , whose members zealously worked to free
freedom, the opinions through the mid-1830's show t h a t the courts
slaves
acted d i f f e r e n t l y toward nonresident slave owners
brought
i n t o Pennsylvania by t h e i r masters and g l a d l y
helped f u g i t i v e slaves.
Bordered by slave s t a t e s ,
Pennsylvania
— by a s s i s t i n g
with the r e t u r n of f u g i t i v e slaves, by adhering s t r i c t l y to the
was a busy s t a t i o n on the underground r a i l r o a d and frequently
six-months r u l e and by protecting the t r a n s i t of slaves through
v i s i t e d by p r o f e s s i o n a l slave catchers.
the s t a t e .
P h i l a d e l p h i a was a
leading commercial
9
On the other hand,
center and,
during the
4
This was also t y p i c a l f o r the courts in the other
free s t a t e s i n t o the 1830's.
By then, however, p u b l i c sentiment
10
against slavery was growing much stronger.
This a t t i t u d e was
soon r e f l e c t e d in the state courts.
free the slave, but he saw the severe r e s t r a i n t t h i s a n a l y s i s
would impose on Massachusetts' attempts to deal with s l a v e r y
The northern a b o l i t i o n s o c i e t i e s and some of the most able
within i t s borders.
As Shaw explained,
lawyers in the North had been s t r i v i n g to get the c o u r t s to adopt
property follows the person,
the p r i n c i p l e s of Somerset v. Stewart.
same must be deemed h i s property everywhere."
In 1836, the Supreme
and
...
"the r i g h t of personal
by the comity of nations the
But t h i s approach
J u d i c i a l Court of Massachusetts rendered an opinion in
would impinge on the free s t a t e s :
Commonwealth v. Aves t h a t deeply a f f e c t e d the development of
and if by the laws of any place a property can be acquired in
s l a v e r y law in both the North and South.
s l a v e s , the law of s l a v e r y must extend to every place where such
slaveowner
The case concerned a
from New Orleans who v i s i t e d her
father
intending to remain there f o r a few months.
a s i x - y e a r - o l d slave g i r l .
in
Boston,
She brought with her
Shortly a f t e r t h e i r a r r i v a l ,
the
slaves may be c a r r i e d . "
Massachusetts.
" [ I ] f slavery e x i s t s anywhere,
This l o g i c would make s l a v e r y l e g a l i n
So Shaw reasoned that comity should "apply only
to those commodities which are everywhere, and by a l l nations
Boston Female A n t i s l a v e r y Society sued in the s t a t e court to free
t r e a t e d and deemed subject of property."
the g i r l .
of course,
Some of the most p r e s t i g i o u s members of the Boston bar
took up the cause of each s i d e .
slaveowner,
Benjamin C u r t i s ,
(One of the lawyers f o r the
would u l t i m a t e l y r i s e to the United
(Aves. p. 216.)
This,
excluded slaves.
A f t e r r e j e c t i n g the a p p l i c a t i o n of comity, Shaw turned to
the importance of l o c a l law.
Noting that slave s t a t e s considered
States Supreme Court and dissent i n Dred Scott, r e l y i n g on some
the r e l a t i o n s h i p between owner and slave to be "a creature of
of the arguments made by h i s opponent in Aves.
municipal law," Shaw pointed out that everyone entering
p.
103.))
(Finkelman (1),
In an opinion written by Chief J u s t i c e Lemuel Shaw,
Massachusetts was subject to a l l of i t s laws and " e n t i t l e d [only]
one of the country's most i n f l u e n t i a l j u r i s t s of h i s time, the
to the p r i v i l e g e s which those law confer."
court freed the slave and developed a r a t i o n a l e that could have
slaves entering Massachusetts became free "not so much because
been used to end nearly a l l the r i g h t s of slaveowners in free
any a l t e r a t i o n i s made i n t h e i r status or c o n d i t i o n , " but because
states.
the laws of the s t a t e ,
Shaw acknowledged that slavery was recognized by the
C o n s t i t u t i o n and many of the states, even though i t was contrary
to natural law.
He understood that comity to the i n t e r e s t s of
the slave states supported a r u l i n g that Massachusetts could not
11
He concluded that
applying to everyone except f u g i t i v e s ,
" p r o h i b i t t h e i r f o r c i b l e detention or f o r c i b l e removal."
p.
(Aves.
217.)
Although the opinion made Aves a broad precedent, Shaw d i d
attempt to l i m i t the reach of Aves i n t o c e r t a i n areas.
12
After
noting that Aves d i d not involve a f u g i t i v e slave, Shaw pointed
p h y s i c a l l y or through a writ of habeas corpus,
out that a slaveowner could pass through a free s t a t e with a
s t a t e law made the slave l e g a l l y free.
captured f u g i t i v e .
master to sue f o r return of the slave,
He a l s o emphasized that Aves d i d not involve
a t r a v e l i n g slaveowner who "necessarily passes through a
free
how the court would r u l e .
contending that
This would force the
with the uncertainty over
Sometimes the slave would have
State, or where by accident or necessity he is compelled to touch
vanished, l e a v i n g the owner with only a s u i t f o r damages against
or land t h e r e i n , remaining no longer than necessary."
the
He gave no
opinion about the outcome of that kind of case, but speculated
(probably hopefully)
that
"our geographic p o s i t i o n exempts us
from the probable n e c e s s i t y of considering such a case."
(Aves.
p. 225.)
The expansion of the Aves p r i n c i p l e s culminated in a
d e c i s i o n i n 1860 by the New York Court o f Appeals i n Lemmon v.
The People.
The case involved husband and wife slaveowners from
V i r g i n i a who were t r a v e l i n g i n l a t e 1852 t o Texas v i a New York
The importance of the Aves d e c i s i o n was obvious to both the
South and North.
abolitionists.
T y p i c a l of the concern in the South, the
C i t y with t h e i r e i g h t slaves.
The f a s t e s t route was to t r a v e l
from V i r g i n i a to New York by ship and then from New York to New
Augusta S e n t i n e l asked southerners i f they were " w i l l i n g t o
Orleans by steamboat.
sustain forever a confederation with states i n t o which you dare
Orleans from the V i r g i n i a area; the overland route took much
not t r a v e l with your property, l e s t that property becomes by law
longer.
actually confiscated."
to take the s l a v e s ashore in New York, they disregarded the
(Finkelman (1), p. 125.)
Abolitionists
There was no steamboat s e r v i c e to New
Although the ship's captain warned the slaveowners not
applauded the d e c i s i o n and quickly t r i e d to expand the holding of
warning and checked i n t o a h o t e l with t h e i r slaves to wait the
Aves to other s t a t e s .
The courts of the free s t a t e s gradually
three days u n t i l the steamboat departed.
followed Massachusetts,
and by 1860,
slaveowners were served with a w r i t of habeas corpus to free the
nearly a l l the free states
had embraced some v e r s i o n of Aves. through the common law,
slaves.
statutes or s t a t e c o n s t i t u t i o n s .
century,
5
This made i t impossible f o r
slaveowners t o v i s i t many free states with t h e i r s l a v e s .
Even i f
(Finkelman (1), p.
296.)
Within the day,
E a r l y in the nineteenth
New York State had enacted a statute,
Pennsylvania's,
that
freed a l l
the
s i m i l a r to
slaves who remained
in New York
the law o f a s t a t e had not developed t o the f u l l extent of Aves.
more than nine months.
it was r i s k y f o r a slaveowner to send or journey with a slave
i n Lemmon freed the slaves, concluding that an 1841 repeal of the
i n t o the s t a t e .
nine-month p r o v i s i o n had the e f f e c t of f r e e i n g a l l slaves who
Whenever a slave entered a s t a t e ,
there was
always the r i s k that a b o l i t i o n i s t s would free the slave
13
The judge in the habeas corpus proceeding
entered New York State upon t h e i r entry i n t o the s t a t e .
14
founded not upon the s t a t u t e , but is a b s o l u t e l y necessary
f o r the peace and harmony of States and f o r the enforcement
of p r i v a t e j u s t i c e .
A d e n i a l of t h i s comity is unheard of
among c i v i l i z e d nations, and i f d e l i b e r a t e l y and wantonly
p e r s i s t e d i n , would be j u s t cause of war.
This r u l i n g answered the question l e f t open i n Aves because
i t d e a l t with slaveowners i n t r a n s i t with t h e i r s l a v e s , not with
a slaveowner who entered a state with an i n t e n t i o n to remain,
however temporarily.
And it caused consternation in the South.
(Quoted in Finkelman (1), p. 300.)
A f t e r the case had worked i t s way through the New York
The Richmond D a i l y Express saw the d e c i s i o n c u t t i n g i n t o the
appellate system,
roots of the Union:
If it be true that the inhabitants of one State had not the
r i g h t to pass with t h e i r property through the t e r r i t o r y of
another, without f o r f e i t i n g i t , then the Union no longer
exists.
The objects f o r which it was i n s t i t u t e d , and f o r
which the C o n s t i t u t i o n of the United States was e s t a b l i s h e d ,
have been rendered, in one respect, impossible of
attainment. F i f t e e n States have been declared out of the
pale of l e g a l p r o t e c t i o n , so f a r as New York can e f f e c t i t ,
and the c i t i z e n s of these states cannot pass through New
York with property of a c e r t a i n kind, without l o s i n g i t ,
though it is recognized by the C o n s t i t u t i o n of the United
States.
(Richmond Daily Dispatch. Nov. 17, 1852, quoted in
Finkelman (1), pp. 298-99.)
the Court of Appeals,
New York's highest court,
f i n a l l y announced i t s d e c i s i o n i n A p r i l 1860.
In a f i v e - t o - t h r e e
d e c i s i o n to f r e e the slaves, the court affirmed the t r i a l judge's
conclusion that the 1841 statute freed a l l slaves upon t h e i r
entry i n t o New York.
The majority saw i t s e l f bound to follow the
d i r e c t i o n of the New York l e g i s l a t u r e rather than common law
p r i n c i p l e s of comity.
It a l s o viewed the case as r a i s i n g an
issue of status, c o n t r o l l e d by state law, i m p l i c i t l y r e j e c t i n g
The slaveowners in Lemmon. who had been compensated by the New
the notion that something more than t r a n s i t o r y presence was
York business community a f t e r the freed slaves f l e d to Canada,
necessary before a s t a t e could regulate s t a t u s .
had no i n t e r e s t in appealing the habeas corpus d e c i s i o n .
claim that people i n t r a n s i t were protected by the commerce or
With
In r e j e c t i n g the
such an important p r i n c i p l e at stake, the V i r g i n i a l e g i s l a t u r e
p r i v i l e g e s and immunities clauses of the C o n s t i t u t i o n , the
d i r e c t e d the s t a t e attorney general to proceed with an appeal in
majority pointed out that if the C o n s t i t u t i o n were interpreted as
the New York s t a t e courts and appropriated funds
allowing the f e d e r a l government to " r i g h t l y i n t e r f e r e in the
f o r the appeal.
The governor of V i r g i n i a took up the cause against the Lemmon
regulation of the s o c i a l and c i v i l
d e c i s i o n in h i s 1853 annual message:
of persons w i t h i n the t e r r i t o r i a l l i m i t s of the r e s p e c t i v e States
I f i t b e true that the c i t i z e n s o f the s l a v e h o l d i n g States,
who, by force of circumstances, or f o r convenience, seek a
passage through the t e r r i t o r y of a non-slaveholding State
with t h e i r slaves, are thereby deprived of t h e i r property in
them, and the slaves ipso facto become emancipated, it is
time that we know the law as i t i s .
No court i n America has
ever announced t h i s to be law.
It would be exceedingly
strange if it should be.
By the comity of nations the
personal status of every man is determined by the law of h i s
domicile....
This is but the courtesy of nation to nation
15
condition of any d e s c r i p t i o n
o f the Union, i t i s not d i f f i c u l t t o foresee the ultimate r e s u l t "
— f e d e r a l i n t e r f e r e n c e with slavery i n the South.
625.)
(Lemmon. p.
The majority expressly d i s t i n g u i s h e d the problem of
t r a n s i t with f u g i t i v e slaves, because the f u g i t i v e slave clause
of the C o n s t i t u t i o n established l i m i t s on s t a t e power.
16
The dissent r e l i e d on the Constitution's c r e a t i o n of a union
between slave and f r e e s t a t e s .
Emphasizing the greater
laws of s l a v e r y in the South that treated slaves as property,
that t r i e d to r i d the South of free blacks and that d i d
importance of comity between the states i n the United States when
everything p o s s i b l e to l i m i t the education,
compared to comity between nations, the d i s s e n t claimed that the
other aspects of slaves that could lead to r e v o l t .
C o n s t i t u t i o n p r o h i b i t e d a s t a t e from ignoring "the r i g h t to
opinions from Aves to Lemmon r e f l e c t e d the growing a n t i s l a v e r y
property in the labor and service of persons in t r a n s i t u from
sentiment in the North from the 1830*s on and heightened the fear
[slave] States," although a state was free "to a b o l i s h or r e t a i n
o f slave r e b e l l i o n .
slavery i n reference to i t s own inhabitants."
C.
(Lemmon. p. 643.)
The d i s s e n t a l s o expressed the fear that the majority's r e j e c t i o n
gathering,
power and
The court
The Response of the Southern Courts
Through the e a r l y nineteenth century,
the courts in the
of comity to the slave states was playing i n t o the hands of the
South were q u i t e l e n i e n t in recognizing the freedom of s l a v e s who
supporters of secession and could lead to c i v i l war.
had gained t h e i r freedom under the law of a f r e e s t a t e or
Lemmon was
not appealed to the Supreme Court, although opponents of the
territory.
d e c i s i o n apparently r a t t l e d t h e i r sabers about g e t t i n g the
Missouri,
Supreme Court that decided Dred Scott to a l s o r u l e on Lemmon.
In f a c t , u n t i l the Missouri Supreme Court declared that Dred
(Finkelman (1), p.
Scott had remained a slave,
313.)
Other events on the eve of the C i v i l
War dwarfed Lemmon in importance, however.
This was true f o r border s t a t e s ,
such as Kentucky and
as w e l l as M i s s i s s i p p i and Louisiana in the deep South.
the Missouri courts had c o n s i s t e n t l y
recognized the freedom of a slave who had resided in a free s t a t e
or t e r r i t o r y .
(Broply, p. 196 n.24.)
1830' s to 1860, exacerbated the growing tension between the North
various ways.
Sometimes a s l a v e who had spent time in a f r e e
and South over s l a v e r y .
s t a t e would sue f o r freedom i n h i s home state i n the South and
These cases in the courts of the free s t a t e s ,
from the mid-
The lawsuits enraged slaveowners, both
This issue arose i n
because the r u l i n g s l i m i t e d t h e i r movement out of the South and
claim h i s freedom under the law of the free s t a t e .
because the judges' r h e t o r i c i n s u l t e d t h e i r way of l i f e .
e f f e c t of the law of a free s t a t e would be tested when a freed
The
Sometimes the
slaveowners a l s o feared that these d e c i s i o n s created i n c e n t i v e s
slave was involved in l i t i g a t i o n in a southern court over an
f o r slaves to escape and, even worse, to r e v o l t .
inheritance.
The f e a r of
In reaching these decisions,
v i o l e n t slave i n s u r r e c t i o n was a powerful i n f l u e n c e on the
sometimes expressly r e l i e d on comity,
breadth of the l e g a l and s o c i a l c o n t r o l of the slaves in the
s t a t e that freed the slave.
South.
p o s i t i v e law theory of Somerset,
6
This fear was a reason f o r many of the d e t a i l e d arcane
17
the southern courts
respecting the law of the
Sometimes the courts,
r e l y i n g on the
reasoned that a slave who had
18
become free could not be reenslaved without a s t a t u t e expressly
d e c i s i o n stands out as an example of the slave s t a t e s '
doing that.
from comity with the North.
A few southern courts also found a common law
preference f o r freedom.
Appeals,
was
one of the leading southern court opinions
supporting freedom.
In 1847, the Pennsylvania
l e g i s l a t u r e repealed i t s six-month clause,
Rankin v. Lydia, an 1820 d e c i s i o n by the Kentucky Court of
Lydia, who was born a slave in Kentucky,
retreat
attempting to f r e e
slaves the i n s t a n t they touched Pennsylvania s o i l .
The next year
a Kentucky slaveowner took her slave to Pennsylvania, where a
f r e e black promptly sought a writ of habeas corpus to
free the
sued f o r her freedom f o l l o w i n g her return to Kentucky a f t e r a
slave.
seven-year stay in the f r e e Indiana t e r r i t o r y .
corpus proceeding, but the slave returned with her master to
Lydia,
In r u l i n g f o r
the court r e l i e d on natural law and comity.
Emphasizing
A Pennsylvania state judge freed the slave in the habeas
Kentucky.
Two years l a t e r the slave sued f o r her freedom in
the d i s t i n c t i o n between residence and t r a n s i t in a f r e e
Kentucky s t a t e court,
jurisdiction,
and the Pennsylvania judgment.
Indiana law.
of
[Kentucky]
the court reasoned that Lydia was f r e e under
Then it concluded that it was "not aware of any law
which can or does bring i n t o operation the r i g h t of
slavery when once destroyed."
(Rankin, p. 471.)
The court even
declared t h a t "freedom is the natural r i g h t of man,
may not be h i s b i r t h r i g h t . "
(Id-1
p. 476.)
although it
In i t s r e l i a n c e on
r e l y i n g on the 1847
Appeals r e j e c t e d her claim.
Pennsylvania s t a t u t e
In Maria v. K i r b y . the Court of
Reasoning from the premise that some
permanent connection is required before a s t a t e can a f f e c t
status,
the court in Kirby concluded that Pennsylvania lacked the
a u t h o r i t y to stamp "a new and permanent c o n d i t i o n or s t a t u s " on a
nonresident who was
in Pennsylvania
"on a t r a n s i e n t entry or
comity, the court emphasized the t i t f o r t a t problem inherent i n
momentary sojourn" so that the new status would "adhere to them
a r e j e c t i o n of comity.
and determine t h e i r condition on t h e i r return to t h e i r own
If Kentucky ignored the laws of Indiana,
Indiana could very w e l l do the same and free t r a n s i e n t slaves
domicile."
from Kentucky.
p a r t i c u l a r l y important because the court not only r e j e c t e d the
This,
of course,
implied that the court would
(Maria v. Kirby. p.
545.)
The d e c i s i o n was
reexamine i t s conclusions i f the free states acted more harshly
e f f e c t o f the Pennsylvania statute,
toward s l a v e owners.
of the judgment of the Pennsylvania court.
Although "the Kentucky court remained, with respect to
apply comity to Pennsylvania
i t a l s o r e j e c t e d the e f f e c t
The court refused to
judgments that denied
of
comity, one of the most c o n s i s t e n t and fair-minded of any of the
property e s t a b l i s h e d by
slave-state courts"
been respected i n Pennsylvania under those same p r i n c i p l e s o f
in i t s dealings with slaves who had been
freed in other states
(Finkelman
19
(1),
p.
205),
one Kentucky
comity.
[Kentucky]
"rights
(Id., p. 547.)
20
law," r i g h t s that should have
Louisiana had been more t o l e r a n t of f r e e blacks than most
southern opinions hardened.
In 1859, the M i s s i s s i p p i Supreme
southern states and r e l a t i v e l y l i b e r a l in recognizing the freedom
Court, in a v i t r i o l i c opinion s c o r n f u l of comity to the North,
of slaves freed elsewhere,
refused to recognize the manumission in Ohio of a M i s s i s s i p p i
probably as a consequence of i t s
French heritage and l e g a l system.
(Finkelman
(1), p.
206.)
As
slave.
As the court put i t , "the r i g h t s of M i s s i s s i p p i are
s l a v e r y became the d i v i s i v e issue i n the country, the Louisiana
outraged, when Ohio ministers to emancipation and the a b o l i t i o n
courts became much more pro-slavery.
of our i n s t i t u t i o n of slavery, by such unkind, d i s r e s p e c t f u l ,
In two d i f f e r e n t cases i n
the e a r l y 1850's, the Louisiana Supreme Court was f o r c e d to
lawless i n t e r f e r e n c e with our l o c a l r i g h t s . "
decide if someone c u r r e n t l y in the s t a t e remained a s l a v e under
p.
the law of M i s s i s s i p p i (where they had been enslaved) or had been
the freedom of slaves was a response to the growing a n t i s l a v e
freed under the law of Ohio (where the slaves had been
sentiment and a c t i v i t y outside the South.
manumitted).
long l i n e of precedent recognizing the freedom of slaves freed in
In each case the court chose s l a v e r y because
manumission was considered a "fraud" against the laws of
Mississippi.
(Mary v. Brown; Haynes v. Forno)
In 1846, the
Louisiana l e g i s l a t u r e enacted a statute d e c l a r i n g t h a t "no slave
s h a l l be e n t i t l e d to h i s or her freedom under the pretense that
he or she has been, with or without the consent of h i s or her
owner,
i n a country where slavery does not e x i s t , or i n any of
the States where s l a v e r y is p r o h i b i t e d . "
(Act of May 30, 1846.)
263.)
( M i t c h e l l v. Wells.
This change in a t t i t u d e of the southern courts toward
In departing from a
free s t a t e s and t e r r i t o r i e s , the Missouri Supreme Court i n the
Dred Scott case explained:
Times are not as they were when the former d e c i s i o n s on t h i s
subject were made.
Since then not only i n d i v i d u a l s but
States have been possessed with a dark and f e l l s p i r i t i n
r e l a t i o n t o slavery, whose g r a t i f i c a t i o n i s sought i n the
p u r s u i t of measures, whose i n e v i t a b l e consequence must be
the overthrow and d e s t r u c t i o n of our government. Under such
circumstances it does not behoove the State of Missouri to
show the l e a s t countenance to any measure which might
gratify this spirit.
(Scott v. Emerson, p. 586.)
In Barclay v. Sewell, a case in which the Louisiana Supreme Court
held that an 1839 Ohio emancipation was l e g a l because
it occurred
before the Louisiana statute went i n t o e f f e c t , the court
explained that the 1846 statute was enacted "probably in
consequence of
i n j u d i c i o u s and
impertinent a s s a u l t s
from without
upon an i n s t i t u t i o n thoroughly interwoven with our i n t e r i o r
lives."
(Barclay v. Sewell. p. 263.)
As the s e c t i o n a l c o n f l i c t worsened, even the r h e t o r i c of the
21
3.
The Pro-Slavery Federal Courts
As the courts i n the free states worked to l i m i t slavery,
the f e d e r a l courts became decidedly pro-slavery and rendered a
s e r i e s of d e c i s i o n s that reaffirmed the f e d e r a l government's
commitment to s l a v e r y .
U n t i l the mid-1840's, the f e d e r a l
decisions were mixed, some supporting the f r e e states i n t h e i r
attempts to f r e e slaves who entered t h e i r t e r r i t o r y .
22
In 1845,
Supreme Court J u s t i c e John McLean, s i t t i n g as a c i r c u i t judge i n
through t h e i r t e r r i t o r y with captured f u g i t i v e slaves.
Indiana,
there was a c o n s t i t u t i o n a l l i m i t a t i o n excepting f u g i t i v e slaves
rendered the
l a s t major
federal
decision
supporting the
freedom of slaves obtained through t r a n s i t or residence
state.
(Vaughn v. Williams; Finkelman (1), p. 250.)
in a
free
A f t e r that,
from the s t a t e s '
territories.
the Supreme Court and lower f e d e r a l courts g e n e r a l l y protected
slaveowners.
The
freedom,
with t h e i r decisions and t h e i r opinions,
but,
f e d e r a l courts could not stem the t i d e of
they sure
attempts to free slaves who entered
Thus,
into their
7
The harsh F u g i t i v e Slave Law of 1850,
the Compromise of 1850,
an important p a r t of
s t i r r e d up widespread protest and
r e s i s t a n c e t o the law i n the North, as well as more f e d e r a l
tried.
litigation.
A.
v. Booth, an appeal from a d e c i s i o n of the Wisconsin Supreme
F u g i t i v e Slave Cases
The e a r l y pro-slavery f e d e r a l decisions c a r r i e d out the 1793
F u g i t i v e Slave Law,
enacted to enforce the
of the C o n s t i t u t i o n .
In 1842,
f u g i t i v e slave clause
J u s t i c e Joseph Story,
who believed
The Supreme Court dealt with t h i s problem i n Ableman
Court f r e e i n g an a b o l i t i o n i s t who had been convicted of v i o l a t i n g
the 1850 a c t .
In Ableman. Chief J u s t i c e Taney, w r i t i n g f o r a
unanimous court, overruled the s t a t e court, reaffirmed the
that the f e d e r a l scheme created by the C o n s t i t u t i o n gave s t a t e s
supremacy of f e d e r a l law and emphasized each s t a t e ' s o b l i g a t i o n
the authority to f r e e slaves who entered into t h e i r t e r r i t o r y
to support a l l the provisions of the f e d e r a l C o n s t i t u t i o n ,
(Finkelman (1), p. 297 n.30), i n t e r p r e t e d the F u g i t i v e Slave Law
clause as repugnant to a state as the f u g i t i v e slave clause.
in Prigg v. Pennsylvania to be a c o n s t r a i n t on s t a t e power.
B.
Prigg had been convicted under a Pennsylvania personal l i b e r t y
law f o r removing a f u g i t i v e slave from the s t a t e without an order
from a magistrate.
In Prigg. the supreme Court h e l d the
Pennsylvania law to be an u n c o n s t i t u t i o n a l v i o l a t i o n of the
f u g i t i v e slave clause.
federal
J u s t i c e Story explained that the 1793
law d i d not compel the states to a s s i s t in any way with
the federal r i g h t to recapture slaves; t h e i r r i g h t s as sovereigns
under the C o n s t i t u t i o n freed them from any o b l i g a t i o n to a s s i s t .
On the other hand,
to recapture,
the states could not i n t e r f e r e with the r i g h t
nor could they i n t e r f e r e with people t r a v e l i n g
23
even a
Federal T r a n s i t Cases
With f u g i t i v e s having no protection in the free s t a t e s ,
the
question of whether a slave was a f u g i t i v e or l a w f u l l y within a
s t a t e often became c r u c i a l .
O l i v e r v. Kauffman. an 1850 d e c i s i o n
by a f e d e r a l c i r c u i t court i n Pennsylvania, i s a good example of
the pro-slavery approach of the federal courts on t h i s issue.
Two months a f t e r Pennsylvania repealed i t s six-months statute,
thereby making slaves f r e e upon t h e i r entry i n t o Pennsylvania, a
slaveowner crossed Pennsylvania with her slaves while returning
home to Maryland.
A few months l a t e r , the slaves ran back to
Pennsylvania, where they were aided by Kauffman.
24
A f t e r the
slaveowner f a i l e d t o recover the slaves, she sued Kauffman f o r
owner claimed that the Kentucky court had erred when i t refused
t h e i r value under the f u g i t i v e slave act.
to apply the law of the free s t a t e s .
Kauffman defended by
Chief J u s t i c e Taney,
claiming that the people he helped were not s l a v e s , having become
w r i t i n g f o r a unanimous court, r u l e d that the Supreme Court
f r e e by Pennsylvania law upon t h e i r passage through the s t a t e .
lacked the j u r i s d i c t i o n to review t h i s issue of s t a t e law.
The judge t o l d the jury that the law required him,
not the
Relying on the
again
"undoubted r i g h t " of every s t a t e to determine the
j u r y , to decide which s t a t e law applied to determine whether the
status of i t s residents, Taney concluded that " [ i ] t was
blacks Kauffman helped were slaves or f r e e .
e x c l u s i v e l y i n the power of Kentucky t o determine f o r i t s e l f
Since the blacks had
r e s i d e d in Maryland, he concluded that the issue depended upon
whether [the slaves'] employment in another State should or
"the law of Maryland, and not of Pennsylvania.
should not make them free on t h e i r return."
T h i s Court cannot
(Strader. p. 94.)
go behind the s t a t u s of these people where they escaped."
The Court would not f o r c e Kentucky to apply the laws of Ohio and
( O l i v e r v.
Indiana.
Kauffman.
p.
660.)
With t h i s preference f o r the law
of the slave s t a t e over that of the free, the judge i n s t r u c t e d
Five years l a t e r ,
another federal court in Pennsylvania
the j u r y that the blacks were slaves when they l e f t Maryland and
considered the e f f e c t of the repeal of the six-months statute and
entered Pennsylvania.
concluded that
Consequently, the j u r y had l i t t l e choice
but t o f i n d Kauffman l i a b l e .
it a f f e c t e d only people who resided or sojourned
in Pennsylvania with t h e i r slaves.
While the c i r c u i t court was deciding O l i v e r , the Supreme
Constitution,
the court concluded,
(U.S. v. Williamson.)
protected the r i g h t of passage
Court e s t a b l i s h e d a r e l a t e d l e g a l p r i n c i p l e i n Strader v. Graham.
of both person and property through s t a t e s .
The case concerned a slaveowner's s u i t against an owner of a
could not a f f e c t the
steamboat on which three slaves escaped from Kentucky to Ohio and
(Id.., pp. 686, 692-93.)
then on to Canada.
p r o t e c t i o n of slaves as property,
The s u i t ,
brought in Kentucky s t a t e court
under a Kentucky s t a t u t e , turned on whether the s l a v e s were f r e e
blacks when they boarded the steamboat, as a r e s u l t o f t h e i r
e a r l i e r journeys i n t o free states to perform as musicians.
"property"
Thus,
a free state
of slaveowners passing through.
This case, r e l y i n g on the c o n s t i t u t i o n a l
presaged the a n a l y s i s used by
the Supreme Court in Dred S c o t t .
The reasoning of Dred Scott also has roots
The
The
in Groves v.
Slaughter,
in a concurrence
an 1841 case i n v o l v i n g the e f f e c t of a
Kentucky court r u l e d that the slaves had not become f r e e under
p r o v i s i o n in the M i s s i s s i p p i c o n s t i t u t i o n that p r o h i b i t e d the
Kentucky law even though t h e i r owner had allowed them t o work i n
importation of slaves purchased outside the s t a t e .
Ohio and Indiana.
that the c o n s t i t u t i o n a l p r o v i s i o n had no l e g a l e f f e c t u n t i l the
On appeal to the Supreme Court, the steamboat
25
26
By r u l i n g
M i s s i s s i p p i l e g i s l a t u r e implemented it through a s t a t u t e , the
s l a v e r y as the s e c t i o n a l c r i s i s grew, but they came nowhere near
Supreme Court avoided the more d i f f i c u l t issue o f whether the
approaching Congress
p r o v i s i o n v i o l a t e d the commerce clause.
controversy in the f r e e states and t e r r i t o r i e s — not u n t i l the
Nonetheless, three
j u s t i c e s wrote concurrences to express t h e i r views on the issue.
J u s t i c e McLean wrote that the commerce clause could not be
a p p l i c a b l e because slaves were people, not property, under the
Constitution.
He acknowledged that the laws of some s t a t e s
treated slaves as property,
but those laws had no bearing on the
reach of the commerce c l a u s e .
In response,
(Groves v. Slaughter, pp. 506-07.)
J u s t i c e Baldwin asserted that slaves were property
under the C o n s t i t u t i o n :
"whenever slavery e x i s t s by the laws of
in terms of s t i r r i n g up resentment and
Supreme Court decided Dred Scott, that i s .
C.
Dred S c o t t v. Sandford
Dred Scott was a slave to an army doctor who l i v e d i n the
J e f f e r s o n Barracks in St. Louis.
In 1834, the doctor took Scott
t o I l l i n o i s , a f r e e s t a t e , and then t o the upper Louisiana
T e r r i t o r y (now Minnesota), which was a l s o f r e e .
Scott married and fathered a baby g i r l .
In I l l i n o i s ,
A f t e r Scott and h i s
family returned to Missouri in 1838 with the doctor,
Scott sued
a s t a t e , slaves are property in every c o n s t i t u t i o n a l sense, and
in s t a t e court, claiming he was f r e e by v i r t u e of h i s four years'
f o r every purpose
residency in a f r e e s t a t e and a free t e r r i t o r y .
"
(Id., p. 517.)
As a Democrat from
He l o s t in the
Pennsylvania, Baldwin would have been s e n s i t i v e to the i s s u e of
Missouri s t a t e courts, when the Missouri Supreme Court departed
slave t r a n s i t .
from a long l i n e of precedent f r e e i n g slaves who had l i v e d in
(Finkelman (1), p. 270.)
So it is not s u r p r i s i n g
t h a t he developed the slaves as property theme in the context of
slave t r a n s i t .
Baldwin wrote:
free s t a t e s .
Scott then sued in federal court.
The lawsuit was widely known and c o n t r o v e r s i a l when i t was
I f , however, the owner of slaves in Maryland, in
t r a n s p o r t i n g them to Kentucky, or M i s s o u r i , should pass
through Pennsylvania, or Ohio, no law of e i t h e r s t a t e could
take away o r a f f e c t h i s r i g h t of property; nor, i f passing
from one slave s t a t e to another, accident or d i s t r e s s should
compel him to touch at any place within a s t a t e , where
s l a v e r y d i d not e x i s t .
Such t r a n s i t of property, whether of
slaves or bales of goods, i s lawful commerce among the
several s t a t e s , which none can p r o h i b i t or regulate, which
the c o n s t i t u t i o n protects, and Congress may, and ought to
preserve from v i o l a t i o n .
(Id., p. 516.)
These d e c i s i o n s , in the Supreme Court and in the lower
pending before the Supreme Court.
The case was argued twice
before the Court rendered i t s opinion in 1857.
It appears that
the Court o r i g i n a l l y planned to dispose of the case with a b r i e f
opinion, r e l y i n g on Strader v. Graham.
The j u s t i c e s changed
t h e i r minds, i n part from pressure from some of the pro-slavery
j u s t i c e s to write a broader and stronger pro-slavery opinion.
The r e s u l t was a long, rambling and, even f o r i t s day, r a c i s t
f e d e r a l courts, were part of the f e d e r a l government's commitment
"Opinion of the Court" written by Chief J u s t i c e Taney.
to slavery.
(Fehrenbacher, pp. 428-31.)
The f e d e r a l courts generally took the s i d e of
27
S i x other j u s t i c e s concurred with
28
Taney; two dissented.
A l l the j u s t i c e s wrote separate opinions
t o explain t h e i r p o s i t i o n s .
Taney wrote t h a t Congress lacked the power under the
C o n s t i t u t i o n t o declare slavery i l l e g a l i n the t e r r i t o r i e s .
Thus, he h e l d that the M i s s o u r i Compromise of 1820 was
unconstitutional,
only the second time in the h i s t o r y of the
Supreme Court that it declared an act of Congress
unconstitutional.
8
Taney rested t h i s conclusion on two grounds.
F i r s t , with some contorted l e g a l l o g i c and r e l i a n c e on a Southern
c o n s t i t u t i o n a l theory advanced by John C. Calhoun, Taney was able
to shrink the meaning of the words of the C o n s t i t u t i o n t h a t give
Congress the power to make r u l e s and regulations f o r the
territories.
Calhoun had claimed that the C o n s t i t u t i o n required
the f e d e r a l government to recognize the fundamental r i g h t s of a l l
s t a t e s , i n c l u d i n g the r i g h t of slavery.
(Brophy, pp. 197-200.)
In order to t r e a t the slave states on equal terms with those that
had abolished slavery,
territories.
Congress had to permit s l a v e r y in the
of law.
And an act of Congress which deprives a c i t i z e n of
the United States of h i s l i b e r t y or property, merely because
he came himself or brought h i s property i n t o a p a r t i c u l a r
t e r r i t o r y of the United States, and who had committed no
offence against the laws, could hardly be d i g n i f i e d with the
name of due process of law." (Dred Scott, p. 450.)
Taney's opinion l e f t no doubt that a slave was property f o r
c o n s t i t u t i o n a l purposes and protected by the C o n s t i t u t i o n as a
species of property.
(Id., p.
451.)
Some h i s t o r i a n s believe that Taney and the majority of the
j u s t i c e s had hoped that they could s t r i k e a workable n a t i o n a l
compromise on the slavery issue through the Dred Scott opinion,
succeeding where Congress had f a i l e d f o r decades.
It is
v i r t u a l l y impossible that the Supreme Court could have done that
i n the l a t e 1850's, even with a more palatable outcome and a
b e t t e r c r a f t e d opinion.
What the Court gave the country i n Dred
Scott was a source of outrage and fear to the North,
a powerful
p o l i t i c a l t o o l to the growing Republican party and a wedge that
drove the country even f u r t h e r apart.
The Court gave the South
important pro-slavery l e g a l p r i n c i p l e s in Dred Scott, but that
9
commitment to slavery could not counteract a l l the a n t i s l a v e r y
As a second b a s i s f o r the holding of u n c o n s t i t u t i o n a l i t y ,
Taney r e l i e d on the p r o t e c t i o n of property in the due process
clause of the f i f t h amendment.
10
This was the f i r s t use of
sentiment and a c t i o n in Congress and in the free states and
territories.
With Dred Scott, the Supreme Court threw o i l on the
k i n d l i n g f i r e s of s e c t i o n a l c o n f l i c t .
(Potter,
p.
118.)
economic substantive due process by the Supreme Court, a
precursor of the Lochner doctrine.
The key s e c t i o n of the
opinion i s b r i e f :
"[T]he r i g h t s of property are united with the r i g h t s of
person, and placed on the same ground by the f i f t h amendment
to the C o n s t i t u t i o n , which provides that no person s h a l l be
deprived of l i f e , l i b e r t y and property, without due process
Before the Supreme Court decided Dred Scott, the law
provided strong support for the states that chose to a b o l i s h
slavery.
This stemmed from the law of status, h i s t o r i c a l l y
within s t a t e ,
not f e d e r a l ,
authority,
and the great power given
to s t a t e s in the federal scheme created by the C o n s t i t u t i o n .
At
the margin, the b a t t l e was over the power of a s t a t e to f r e e a
borders.
nonresident t r a n s i e n t slave, as i n Lemmon. or a slave w i t h i n the
p o t e n t i a l l y a large number of t r a n s i e n t or sojourning slaves
state on a short v i s i t .
would have changed d r a s t i c a l l y the atmosphere w i t h i n the s t a t e
With those l i m i t e d exceptions, most
people, in both the North and South, accepted the a u t h o r i t y of
free s t a t e s to eliminate slavery within t h e i r borders.
Scott changed that,
Dred
the i n - s t a t e presence of
and made the s t a t e e s s e n t i a l l y no longer f r e e .
The d e c i s i o n i n Dred Scott became a l i g h t e n i n g rod f o r
s i n c e slaves were now considered to be
property protected by the C o n s t i t u t i o n ,
To the opponents of slavery,
a n t i s l a v e r y sentiment.
it was p o s s i b l e that the
Northerners protested, e d i t o r i a l s
expressed outrage and p o l i t i c i a n s used worst-case extensions
p r o t e c t i o n of property r i g h t s would u l t i m a t e l y outweigh both the
the p r i n c i p l e s of Dred Scott.
h i s t o r i c a l power of states to c o n t r o l status and the a u t h o r i t y to
free s t a t e s passed r e s o l u t i o n s condemning the d e c i s i o n .
c o n t r o l i n - s t a t e s l a v e r y as an aspect of s t a t e sovereignty.
(Fehrenbacker, pp. 431-35.)
people
feared that the Supreme Court,
Court that decided Dred Scott,
Many
e s p e c i a l l y the pro-slavery
could j u s t as well expand the
of
The l e g i s l a t u r e s of a number of
L i n c o l n b u i l t much of h i s campaigns
around the prospects of the South attempting to make slavery
national.
Dred Scott was an important part of t h i s argument,
notion of a c o n s t i t u t i o n a l protection of slaves as property to
l e a s t as e a r l y as h i s "House Divided" speech during h i s Senate
r e s t r i c t the f r e e s t a t e s ' p r o h i b i t i o n of slavery.
campaign of 1858.
Even though
(Fehrenbacher, p. 438; Finkelman (1), p. 316.)
the f i f t h amendment r e s t i c t e d only the f e d e r a l government, not
Many Republicans believed that the next step f o r the Supreme
the s t a t e s ,
Court was to reverse Lemmon or a s i m i l a r case.
it was p o s s i b l e that the c o n s t i t u t i o n a l p r o t e c t i o n of
slavery in the free states could have been buttressed on e i t h e r
the commerce clause or the p r i v i l e g e s and immunities clause.
(Finkelman (1), pp. 326-36.)
This c o n s t i t u t i o n a l theory would
r e i n f o r c e the trend in the federal courts to protect the owners
of t r a n s i e n t s l a v e s .
I t could make i t impossible f o r f r e e states
to prevent short or perhaps even long v i s i t s within t h e i r borders
by s l a v e s .
It is inconceivable that the property r i g h t s theory
could have been expanded to prevent s t a t e s from f r e e i n g the
slaves of t h e i r own
residents.''
But up to that l i m i t , s t a t e s
could have l o s t much control over slavery within t h e i r own
31
at
Besides i t s stimulus t o the a n t i s l a v e r y fervor and i t s
p o l i t i c a l impact,
the opinion in Dred Scott had other important
consequences that l i m i t e d the p o t e n t i a l
crisis.
approaches to the slavery
Dred Scott e s t a b l i s h e d s i g n i f i c a n t l i m i t s on the federal
power over s l a v e r y .
By r e i n f o r c i n g the view that slavery was
p r i m a r i l y an issue f o r the states, and by r a i s i n g the f i f t h
amendment's p r o t e c t i o n of property, the Court l e f t Congress with
l i t t l e power over s l a v e r y .
This l i m i t e d the ways that Congress
could have attempted to broker a compromise to prevent war.
Dred Scott a l s o a f f e c t e d the methods that could have been
32
used to a b o l i s h s l a v e r y in the South.
have been taken.
Three approaches could
F i r s t , adhering t o the f i f t h amendment theme of
from the extreme d i f f i c u l t y , perhaps i m p o s s i b i l i t y , of
maintaining a l a r g e s l a v e system throughout the South in which
Dred Scott. Congress c o u l d have used the eminent domain power,
c h i l d r e n became f r e e a t an e a r l y age and adults remained slaves
recognized i n the f i f t h amendment, t o condemn the slaves as
or became indentured f o r many, many years.
property.
treatment of some slaves and with the prospects of true freedom
It has been c a l c u l a t e d that the required " j u s t
With the d i f f e r e n t
compensation" would have been one year's GNP f o r the e n t i r e
in the f u t u r e f o r the r e s t , the system would have been too
nation in the 1860's, something s u r e l y too c o s t l y to northern
unstable t o l a s t i n t h i s form.
p o l i t i c i a n s and taxpayers.
(Lee & P a s s e l l , ch. 10.)
In
A second approach to the a b o l i t i o n of s l a v e r y in the South
a d d i t i o n , many northerns would have f e l t that compensation f o r
could have been a c o n s t i t u t i o n a l amendment e i t h e r expressly
the s l a v e s was a c t u a l l y ransom, which should not be p a i d as a
a b o l i s h i n g s l a v e r y or g i v i n g Congress the power to g r a d u a l l y
matter of p r i n c i p l e .
eliminate i t .
A p o s s i b l e way to avoid compensation would
The 15 slave states could have blocked any
have been to use gradual emancipation, as the northern s l a v e
amendment, however, because amendment requires r a t i f i c a t i o n by
states and some Caribbean countries had.
three-fourths of the s t a t e s .
There were two
drawbacks to t h a t approach — one l e g a l , one p r a c t i c a l .
Gradual
Plus, the c o n s t i t u t i o n a l theory of
Calhoun, espoused i n Dred Scott, would p r o h i b i t amendment of the
emancipation would have been analogous l e g a l l y t o the modern
C o n s t i t u t i o n to eliminate such a "fundamental" r i g h t , inherent in
approach t o e l i m i n a t i n g e x i s t i n g uses of property that f a i l t o
the o r i g i n a l Union, without unanimous consent by a l l the s t a t e s .
conform to a changed zoning ordinance.
Generally there is no
A t h i r d approach could have been f o r the Supreme Court t o
requirement f o r compensation as long as the property owner is
change the c o n s t i t u t i o n a l law of s l a v e r y .
allowed to continue the nonconforming use long enough to r e a l i z e
would not have undone i t s own handiwork.
s u b s t a n t i a l income from the property and to plan a move t o
u n t i l the l a t e 1860's or e a r l y 1870's f o r two successive
another, conforming l o c a t i o n .
Republican p r e s i d e n t s to change the composition of the Court to
But t h i s analogy breaks down
because slaves could not be moved to produce income l a t e r ; they
a n t i - s l a v e r y , if there had not been a war.
would be freed.
323.)
Further, i t i s l i k e l y that a Supreme Court
The Dred S c o t t Court
And it would have taken
(Finkelman (1), p.
There was an even more fundamental problem, however.
composed of j u s t i c e s l i k e the ones who decided Dred Scott would
Although much of the a n a l y s i s of Dred Scott lacked support i n the
have found gradual emancipation to be an u n c o n s t i t u t i o n a l
precedents, other p a r t s of the opinion were c o n s i s t e n t with
v i o l a t i o n of the f i f t h amendment.
e a r l i e r f e d e r a l cases.
33
The p r a c t i c a l problem stems
Even i f a new Supreme Court could have
34
rejected the holding of Dred Scott and r u l e d that slaves became
the northern s t a t e courts began to r u l e with i n c r e a s i n g h o s t i l i t y
free when they touched free s o i l , the Court would have faced a
to s l a v e r y .
v i r t u a l l y impossible task i f i t had t r i e d to make inroads against
slavery i n the South, although they made i t r i s k y f o r slaveowners
s l a v e r y in the South.
to t r a v e l i n t o f r e e states and they l e d slaveowners to b e l i e v e
The C o n s t i t u t i o n , with i t s accommodation
of s l a v e r y and i t s r e c o g n i t i o n of the power of the s t a t e s , would
have been a formidable b a r r i e r to j u d i c i a l emancipation.
Finally,
These r u l i n g s never threatened the existence of
that the r u l i n g s encouraged slaves to escape and r e v o l t .
a n t i - s l a v e r y a c t i o n s and r h e t o r i c throughout the North,
i f a new Supreme Court had l a t e r overruled Dred Scott
and attempted to l i m i t slavery, the South would have r e s i s t e d
j u s t as v i o l e n t l y as it a c t u a l l y d i d — unless the South had
changed enough by then to begin to support emancipation on i t s
own.
the
s t a t e court decisions,
including
undercut the commitment to slavery.
To help hold the l i n e , the federal courts became i n c r e a s i n g l y
pro-slavery,
r e i n f o r c i n g the Constitution's and the f e d e r a l
government's commitments to s l a v e r y .
As p u b l i c sentiment in the
North began to s w e l l against slavery, it became harder and harder
None of these options for emancipation was f e a s i b l e .
Even
f o r the f e d e r a l government to maintain i t s o b l i g a t i o n s to
if the Supreme Court had stayed out of the n a t i o n a l controversy
slavery.
over s l a v e r y by avoiding Dred Scott and s i m i l a r cases,
existence of s l a v e r y in the South.
it is
inconceivable to me that the country would have avoided c i v i l
war.
The
If there might have been some chance f o r p e a c e f u l
settlement,
believe,
As many h i s t o r i a n s
"the Dred Scott d e c i s i o n bears d i r e c t l y upon the coming
of the C i v i l War."
12
slavery became more d i f f i c u l t to preserve.
Conclusion
a t t i t u d e toward slavery had changed so much s i n c e the
r a t i f i c a t i o n of the C o n s t i t u t i o n that the Supreme Court could do
States of America but f o r the C o n s t i t u t i o n ' s commitment to
with the t h i r t y years of ever increasing a n t i s l a v e a c t i v i t y .
commitment to s l a v e r y could never again be c r e d i b l e .
And a c o n s t i t u t i o n a l commitment is one of the
As
a n t i s l a v e r y sentiment grew in the North beginning in the 1830's,
35
Words i n the
C o n s t i t u t i o n and i n court opinions meant l i t t l e when compared
The t h i r t e e n colonies would not have become the United
strongest, most secure promises a government can g i v e .
By
1857, when the Supreme Court decided Dred Scott, the country's
l i t t l e t o make the slavery commitment c r e d i b l e .
4.
slavery.
But a l l other aspects of
Sometimes commitments can no longer be made c r e d i b l e .
Dred Scott diminished i t and made war even more
l i k e l y as the only way to emancipation.
The C o n s t i t u t i o n made the task e a s i e r by p r o t e c t i n g the
36
The
Notes
*I wish to thank the following people f o r t h e i r h e l p f u l
comments: Arthur Denzau, John Ferejohn, Stanton Krauss, Douglass
C. North, Robert B. Thompson, Andrew Rutten and Barry Weingast.
I am also indebted to the thorough compilation and a n a l y s i s of
s t a t e and f e d e r a l cases concerning slavery and federalism in P.
Finkelman, An Imperfect Union: s l a v e r y , Federalism and Comity
(U.N.C. Press 1984). I hope t h a t my c o n t r i b u t i o n is a worthy
complement to h i s f i n e book.
1. For example, J u s t i c e Joseph Story, well-known f o r h i s
a n t i - s l a v e r y views, wrote the opinion in Prigg v. Pennsylvania, a
case that upheld the c o n s t i t u t i o n a l i t y of the 1793 F u g i t i v e Slave
Law and expanded f e d e r a l a u t h o r i t y at the expense of the s t a t e s .
(Storing, p. 49.)
2. U.S. Const., a r t . I, § 2, c l . 3; a r t . I, § 9, c l . 1;
a r t . IV, § 2, c l . 3; a r t . I, § 9, c l . 4; a r t . I, §8, c l . 15; a r t .
IV, § 4, c l . 4; a r t . V; a r t . I, § 9, c l . 5; and a r t . I, § 10, c l .
2. See Wieck, p. 32.
3. For example, see the views of J u s t i c e Thurgood Marshall,
in " R e f l e c t i o n s on the B i c e n t e n n i a l , " and the response in Jensen,
"Commentary." See g e n e r a l l y Goldwin & Kaufman.
4. For example, the A b o l i t i o n Society argued in Respublica
v. Richards that the Pennsylvania statutes gave every black —
whether f r e e , slave or f u g i t i v e slave — the r i g h t to a j u d i c i a l
hearing before being removed from the s t a t e .
The Pennsylvania
Supreme Court r e j e c t e d that i n t e r p r e t a t i o n , reasoning that i t
would unduly burden masters who were l e g a l l y i n the s t a t e with
t h e i r slaves.
The court concluded that a master not only had a
r i g h t to remove a slave, but if the slave r e s i s t e d , " i t was the
duty of every magistrate to employ a l l the l e g i t i m a t e means of
coercion in h i s power, f o r securing and r e s t o r i n g the negro to
the s e r v i c e s of h i s owner." Respublica. p. 224. See Finkelman
(1), pp. 63-64, 68-69.
7. Ten years l a t e r , i n 1852, the Supreme Court upheld the
c o n s t i t u t i o n a l i t y of an I l l i n o i s statute making c r i m i n a l the
harboring of a f u g i t i v e slave.
The Court r u l e d that s t a t e s had
the a u t h o r i t y to a s s i s t the purpose of the f u g i t i v e slave clause.
Moore v. The People. 55 U.S. (14 How.) 13 (1852).
8. When the Supreme Court decided Dred Scott i n 1857,
Congress had already repealed the Missouri Compromise by the
Kansas-Nebraska Act, which allowed the s e t t l e r s in the previously
f r e e t e r r i t o r y to decide f o r themselves whether they wanted to be
free or slave.
9. Dred S c o t t , pp. 441-52. Since the M i s s o u r i Compromise
was u n c o n s t i t u t i o n a l , Scott no longer had any b a s i s to claim he
had become f r e e .
Taney a l s o rested the d e c i s i o n on a t h i r d
conclusion:
as a black, whether slave or free, Scott had no
r i g h t s under the C o n s t i t u t i o n and hence no standing to sue in
f e d e r a l court.
The d e c i s i o n about t h i s issue, the most r a c i s t
and a l s o the longest part of Tandy's opinion, had v i r t u a l l y no
support in e i t h e r l e g a l precedent or h i s t o r y .
(See Fehrenbacher,
pp. 340-66.)
And the conclusion was devastating f o r free blacks,
since i t deprived them o f a l l federal r i g h t s , i n c l u d i n g access t o
f e d e r a l court.
10.
For an i n t e r p r e t a t i o n of the opinion as l i m i t e d in i t s
r e l i a n c e on due process, see Fehrenbacher, pp. 382-84.
11.
Dred Scott was inconceivable to many i n i t s day.
"[I]f
the Dred Scott d e c i s i o n i t s e l f had not been rendered, i t might
have seemed i n c r e d i b l e t h a t the Court could deny the power of
Congress to regulate s l a v e r y in the t e r r i t o r i e s despite the f a c t
that it had been doing so since 1789 under A r t i c l e IV, Section 3,
of the C o n s t i t u t i o n , which s p e c i f i e d that 'the Congress s h a l l
have power to . . . make a l l needful r u l e s and regulations
respecting the T e r r i t o r y or other property belonging to the
United S t a t e s . " '
Potter, p. 351.
12.
K u t l e r , p. x v i i i .
See Bestor, p. 283; Fehrenbacher, p.
3; Finkelman (1), p. 274; Potter, pp. 291-93.
5. A l l of the free states had embraced some v e r s i o n of Aves
except C a l i f o r n i a , I l l i n o i s , Indiana, New Jersey and Oregon.
Finkelman (1), p. 127 & n. 4.
6. For example, J e f f e r s o n was r e f e r r i n g to slave
i n s u r r e c t i o n when he wrote that "we have a wolf by the ears and
we can neither hold him, nor s a f e l y l e t him go.
J u s t i c e is in
one scale, and s e l f preservation in the other."
(Quoted in
S t o r i n g , p. 56.)
See a l s o Buchanan's annual message to Congress
in December 1860, quoted in Potter, p. 519.
37
38
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4
POLITICAL ECONOMY WORKING PAPER SERIES
Unpublished working papers are available upon request by writing the Center in Political Economy at Washington University, Campus Box 1208, One Brookings Drive, St. Louis, Missouri 63130.
101.
Weingast, Barry R. and William J. Marshall (February 1988) "The Industrial Organization of Congress (Or Why Legislatures, Like Firms, Are Not Organized as Markets," Journal of Political Economy 96.
102.
103.
104.
105.
106.
107.
108.
McCubbins, Mathew D. and Thomas Schwartz (February 1986) "Congress, the Court, and Public Policy: Consequences of the One Man, One Vote Rule."
North, Douglass C. (July 1987) "Institutions, Transaction Costs and Economic Growth," Economic Inquiry X X V : 3:419-428.
Cox, Gary (May 1987) "The Uncovered Set and the Core," American Journal of Political Science X X X I : 408-422.
Shepsle, Kenneth A. and Barry R. Weingast (March 1987) "The Institutional Foundations of Committee Power," American Political Science Review 81: 85-105.
Alt, James E., Randall L. Calvert and Brian D. Humes (June 1988) "Reputation and Hegemonic Stability: A Game Theoretic Analysis," American Political Science Review 82: 445-466.
Calvert, Randall L. (1987) "Reputation and Legislative Leadership," Public Choice 55: 81-119.
Fiorina, Morris P. and Kenneth A. Shepsle (1990) "Negative Voting: An Explanation Based on Principal-Agent Theory," in Information and Democratic Processes, John Ferejohn and James Kuklinski, eds.
Champaign: University of Illinois Press.
109.
Alt, James E. (April 1987) "Crude Politics: Oil and the Political Economy of Unemployment in Britain and Norway, 1970-1985," British Journal of Political Science 17:149-199.
110.
111.
112.
113.
114.
North, Douglass C. (1987) "Institutions, Economic Growth and Freedom: An Historical Introduction," in Freedom, Democracy, and Economic Welfare, M. Walker, ed. The Fraser Institute.
McKelvey, Richard D. and Norman Schofield (July 1987) "Generalized Symmetry Conditions at a Core Point," Econometrica 55: 923-933.
Hammond, Thomas H. and Gary J. Miller. (December 1987) "The Core of the Constitution," The American Political Science Review 81:4:1155-1174.
North, Douglass C. and Andrew R. Rutten (1988) "The Northwest Ordinance in Historical Perspective," in Essays on the Economy of the Old Northwest, ed. by David Klingman and Richard Vedder, pp. 19-35.
Athens: Ohio University Press.
Wallis, John Joseph and Douglass C. North. (September 1986) "Integrating Transaction Costs into Economic History."
115.
116.
McCabe, Kevin A. (January 1987) "Fiat Money as a Store of Value in an Experimental Market."
Schofield, Norman (December 1987) "Coalitions in West European Democracies: 1945-1986," The European Journal of Political Economy 3:555-591.
117.
118.
119.
120.
121.
122.
123.
124.
125.
Schofield, Norman, Bernard Grofman, and Scott L. Feld (March 1988) "The Core and the Stability of Group Choice in Spatial Voting Games," The American Political Science Review 82:195-211.
Miller, Gary J. (1990) "Administrative Dilemmas: The Role of Political Leadership," Limits of Rationality Karen Cook and Margaret Levi, eds.
Eavey, Cheryl L. and Gary J. Miller (1988) "Constitutional Conflict in State and Nation," The Federalist Papers in Contemporary Perspective, B. Grofman and P. Wittman, eds. JAJ Press.
Hammond, Thomas H. and Jack H. Knott (December 1987), "A Formal Model of Subgovernment Power in the Policymaking Process."
Eavey, Cheryl L. "Patterns of Distribution in Spatial Games," Rationality and Society 3: 450-474 (1991).
Thomas, Paul, and Thomas H. Hammond (Spring 1989), "The Impossibility of a Neutral Hierarchy," Journal of Law, Economics, and Organization 5:1:155-184.
Hammond, Thomas H. and Paul A. Thomas (August 1990) "Invisible Decisive Coalitions in Large Hierarchies." Public Choice Vol. 66, No. 2.
Nye, John Vincent and Hilton Root (March 1988). "Capitalist, Pre-Capitalist: A Mistaken Antithesis."
Marks, Brian (February 1988) "A Model of Judicial Influence on Congressional Policymaking: Grove City College v. Bell.'
126.
Schofield, Norman (May 1989) "Smooth Social Choice," Mathematical and Computer Modelling 12:417-435, in a special issue entitled Formal Theories of Politics: Mathematical Modelling in Political Science, P.
Johnson, ed. and as Volume 20 in the International Series in Modern Applied Mathematics and Computer Science (1989) Oxford: Pergamon Press.
127.
Nelson, Douglas R. and H. Keith Hall (December 1988) "Institutional Structure and Time Horizon in a Simple Model of the Political Economy: The Lowi Effect."
128.
Olmsted, George, Judith Roberts and Arthur T. Denzau (December 1988) "We Voted for This? Institutions and Educatonal Spending."
129.
North, Douglass C. and Barry R. Weingast (May 1989) "Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in 17th Century England," Journal of Economic History.
130.
North, Douglass C. (1990) "Institutions and a Transaction Cost Theory of Exchange," Essays in Positive Political Economy, James Alt and Kenneth Shepsle, eds. Cambridge: Cambridge University Press.
131.
132.
133.
134.
Brookshire, David S., Donald L. Coursey, and Douglas B. Redington (December 1988) "Special Interests and the Voluntary Provision of Public Goods."
Ladha, Krishna K (March 1989) "Money in Congressional Voting."
Ladha, Krishna K. (1991) "A Spatial Model of Legislative Voting with Perceptual Error," Public Choice 68:151-174.
Gilmour, John B. (May 1989) "Hardball and Softball Politics: A Theory of Coalition Size in Congress."
135.
136.
Ladha, Krishna K (Forthcoming) "Coalitions in Congressional Voting," Public Choice.
King, Ronald R a n d David E. Wallin (July 1989) "Optimal Level of Fradulent Disclosure When Litigation is Costly."
137.
138.
139.
140.
141.
Roberts, Russell D. (September 1989) The Interaction between Public and Private Spending When Government Is Responsive to to the Preferences of Citizens."
Gauthier, Bernard (January 1990) "Hierarchies and Delegation: Sequential Production Process in an Organizational Setting."
Pastore, Mario H. (March 1990) "Factor Proportions, Public Finances, and Property Rights on Labor Resources: A Test and Reformulation of Domar's Hypothesis on Slavery or Serfdom."
Roberts, Russell D. (March 1990) "The Tragicomedy of the Commons: Why Communities Rationally Choose Inefficient Allocations of Shared Resources."
Dopuch, Nicholas and Ronald R. King (January, 1992) "Negligence Versus Strict Liability Regimes in Auditing: An Experimental Investigation," The Accounting Review, Vol. 67, No. 1, pp. 97-120..
142.
Nye, John Vincent (June 1991) "Revisionist Tariff History and the Theory of Hegemonic Stability," Politics and Society Vol. 19, No. 2, pp. 209-232.
143.
144.
Gauthier, Bernard (May 1990) "Agency Problems and Structural Arrangements within International Economic Organizations: The Case of the World Bank."
North, Douglass C. (Fall 1990) "A Transaction Cost Theory of Politics," Journal of Theoretical Politics.
145.
Zenger, Todd R. (August 1990) "Understanding Organizational Diseconomies of Scale: Small Firm Advantages in Resolving Agency Problems in R & D."
146.
Ensminger, Jean and Andrew R. Rutten (1991) "The Political Economy of Changing Property Rights: Dismantling a Pastoral Commons," American Ethnologist 18(4): 41-57.
147.
148.
149.
Ladha, Krishna K (August 1990) "The Pivotal Role of the Judiciary in the Regulation Battle between the Executive and Legislature."
North, Douglass C. (September 1990) "Economic Development in Historical Perspective: The Western World."
Zenger, Todd R. (February 1991) "Why Do Employers Only Reward Extreme Performance? Evidence and Explanations of Zig-Zagging Relationships among Performance, Pay, and Turnover."
150.
North, Douglass C. (April 1991) "Institutions and Economic Development," forthcoming as a Working Paper of the World Bank Series.
151.
152.
Gresik, Thomas A. and Douglas R. Nelson (May 1991) "Incentive Compatible Regulation of a Foreign-Owned Subsidiary."
Grossman, Peter Z. (July 1991) "The Dynamics of a Stable Cartel: The Express 1851-1913."
153.
Miller, Gary J. (Forthcoming) "Abnormal Politics: Possibilities for Presidential Leadership," in Researching the Presidency, George Edwards, ed. Agathon Press.
154.
155.
Gilmour, John B. and Paul Rothstein (Forthcoming) "Early Republican Retirement: A Cause of Democratic Dominance in the House of Representatives," Legislative Studies Quarterly.
Ladha, Krishna (August 1992) "The Condorcet Jury Theorem, Free Speech and Correlated Votes," American Journal of Political Science.
156.
157.
158.
159.
160.
161.
162.
Eavey, Cheryl L. and Gary Miller (October 1991) "Institutionally-Derived Stability: Cores in Two-Dimensional Voting Games."
Ladha, Krishna (Forthcoming) "Condorcet's Jury Theorem in Light of de Finetti's Theorem: Majority-Rule Voting with Correlated Votes," Social Choice and Welfare.
Ladha, Krishna and Gary Miller (November 1991) "Political Discourse, Factions, and the General Will: Correlated Voting and Condorcet's Jury Theorem."
Ladha, Krishna (December 1991) "Information Pooling through Majority-Ruled Voting: Condorcet's Jury Theorem with Correlated Votes"
Olson, Mary (December 1991) "Political Influence and U.S. Regulatory Policy: The 1984 Drug Legislation."
Tovey, Craig (January 1992) "The Almost Surely Shrinking Yolk."
Schofield, Norman (January 1992) "A Theory of Coalition Government in a Spatial Model of Voting."
163.
164.
165.
166.
167.
Schofield, Norman and Craig Tovey (August, 1992) "Probability and Convergence for Supra-Majority Rule with Euclidean Preferences," Mathematical and Computer Modelling 16: 41-58.
Schofield, Norman (In Press) "Political Competition and Multiparty Coalition Governments," European Journal of Political Research.
Lowry, William R. (January 1992) "Centralization of Policymaking in the National Park Service."
Berg, Joyce, John W. Dickhaut, and Chandra Kanodia (November 1991) T h e Role of Private Information in the Sunk Cost Phenomenon."
Olson, Mary (January 1992) "Pharmaceutical Expenditure and Regulatory Policy in the NHS."
168.
Poppo, Laura (February 1992) "Product Cost Disclosure and Renegotiation Costs in Profit Center and Market Exchanges: An Empirical Test."
169.
Rothstein, Paul and John B. Gilmour (April 1992) T e r m Limitation in a Dynamic Model of Partisan Balance."
170.
Gilmour, John B. and Paul Rothstein (December 1992) "A Dynamic Model of Loss, Retirement, and Tenure in the U. S. House of Representatives."
171.
Drobak, John N. (July 1992) T h e Courts and Slavery in the United States-Property Rights and Credible Commitments".