John mclean: Moderate abolitionist and supreme court politician

Vanderbilt Law Review

Volumn 62, Issue 2, 2009, Pages 519-565

  Finkelman, Paul ^a  

^a ALBANY LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67649547217     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (322)

1. The biographical and factual material relating to Justice McLean's political career appearing in the introductory part of this Article and in Part I, if not otherwise cited, is taken from FRANCIS P. WEISENBURGER, THE LIFE OF JOHN MCLEAN: A POLITICIAN OF THE UNITED STATES (1937).
2. By contrast, Chief Justices and Associate Justices John Jay, John Rutledge, John Marshall, Roger B. Taney, Bushrod Washington, Brockholst Livingston, and John Blair all came from wealthy, and often politically powerful, families. Oliver Ellsworth and William Paterson graduated from Princeton (then known as the College of New Jersey). William Cushing and Joseph Story were solidly middle class graduates of Harvard University. Samuel Chase was educated by his father, an Anglican priest. For basic biographical information on the Justices of the Supreme Court, see Oyez, U. S. Supreme Court Media, Browse Justices, http://www.oyez.org/courts/, and entries on the Justices in AMERICAN NATIONAL BIOGRAPHY, available at http://www.anb.org/articles/home.html.
3. WILLIAM B. SPRAGUE, A DISCOURSE DELIVERED SUNDAY MORNING, APRIL 7, 1861, in the SECOND PRESBYTERIAN CHURCH, ALBANY, in COMMEMORATION OF THE LATE HON. JOHN MCLEAN, LL. D., ONE OF THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES 17 (1861) (on file with the Vanderbilt Law Review).
4. Michael A. Kahn, The Appointment of John McLean to the Supreme Court: Practical Presidential Politics in the Jacksonian Era, 18 J. SUP. CT. HIST. 59, 66-70 (1993).
5. McLean's length of service on the bench seems to be in dispute. Most scholars assert he was there for thirty-two years, dating from his confirmation on March 7, 1829. E.g., Paul Finkelman, John McLean, in THE SUPREME COURT JUSTICES: A BIOGRAPHICAL DICTIONARY 293 (Melvin I. Urofsky ed., 2001);
6. Kahn, supra note 4, at 65. This dating is supported by the fact that McLean's successor as Postmaster General, William T. Barry, was confirmed on March 9, 1829. BIOGRAPHICAL DIRECTORY OF THE AMERICAN CONGRESS, 1774-1996, at 6 (Joel D. Treese ed., 1997).
7. On the other hand, the U. S. Supreme Court's official website lists him as taking office on January 30, 1830 and serving until his death on April 4, 1861. Supreme Court of the United States, Members of the Supreme Court of the United States, http://www.supremecourtus. gov/about/members.pdf (last visited Feb. 23, 2009).
8. However, the Court has a note appended to these dates declaring the dates are from an "authority that is questionable, and better authority would be appreciated."
9. Id. This confusion underscores his ambivalent legacy. Perhaps the Supreme Court website promotes McLean from among the most underappreciated to among the most insignificant, if the Supreme Court itself cannot determine when he actually served.
10. See David P. Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 U. CHI. L. REV. 466, 469 (1983) (discussing indicators of insignificance).
11. At the time, only Justices John Marshall and Joseph Story had served longer. Supreme Court of the United States, Members of the Supreme Court of the United States, http://www.supremecourtus.gov/about/members.pdf (last visited Feb. 23, 2009).
12. SUPREME COURT OF THE UNITED STATES, 1789-1980: AN INDEX TO OPINIONS ARRANGED BY JUSTICE 75-84 (Linda A. Blandford and Patricia Russell Evans eds., 1983).
13. Among long-serving Justices, he is surpassed in obscurity only by Gabriel Duvall (twenty-four years on the bench), Nathan Clifford (twenty-three years), and Thomas Todd (nineteen years). See Currie, supra note 5, 466 (1983) (discussing the relative "insignificance" of Supreme Court Justices);
14. Frank H. Easterbrook, The Most Insignificant Justice: Further Evidence, 50 U. CHI. L. REV. 481, 481 (1983) (responding to Currie's article).
15. 33 U. S. (8 Pet.) 591, 654 (1834).
16. 36 U. S. (11 Pet.) 257, 259 (1837).
17. 48 U. S. (7 How.) 283, 392 (1849).
18. 54 U. S. (13 How.) 518, 557 (1852).
19. Kahn, supra note 4, at 59.
20. 1 THE JUSTICES OF THE UNITED STATES SUPREME COURT, 1798-1978: THEIR LIVES AND MAJOR OPINIONS 538 (Leon Friedman and Fred L. Israel eds., 1980).
21. Diary Entry of John Quincy Adams (June 3, 1828), 8 MEMOIRS OF JOHN QUINCY ADAMS 23, 25 (Charles Francis Adams ed., 1876) [hereinafter ADAMS, MEMOIRS].
22. Diary Entry of John Quincy Adams (July 7, 1828), 8 ADAMS, MEMOIRS, supra note 15, at 51, 51.
23. Thomas Carney, The Political Judge: Justice John McLean's Pursuit of the Presidency, 111 OHIO HIST. 122, 125 (2002).
24. Id. at 126.
25. WEISENBURGER, supra note 1, at 46.
26. Justice Benjamin R. Curtis (1851-57) was the only other Northerner who was even moderately antislavery appointed after McLean. Smith Thompson (1823-43) and Joseph Story (1812-45) were the only other northern Justices who were even moderately antislavery who served with McLean. The term "doughface" implied their faces were made of bread dough and Southerners could shape them any way they wished.
27. MICHAEL F. HOLT, THE RISE AND FALL OF THE AMERICAN WHIG PARTY 261 (1999).
28. Diary Entry of John Quincy Adams (Mar. 14, 1833), 8 ADAMS, MEMOIRS, supra note 15, at 537, 537 (quoting former Speaker of the House of Representatives John W. Taylor).
29. Diary Entry of John Quincy Adams (Sept. 14, 1831), 8 ADAMS, MEMOIRS, supra note 15, at 412, 412; WEISENBURGER, supra note 1, at 78-79.
30. WEISENBURGER, supra note 1, at 78-79.
31. HOLT, supra note 21, at 19; see also Kahn, supra note 4, at 70 (finding that McLean "wanted to serve the nation and the new administration on his own terms").
32. WEISENBURGER, supra note 1, at 102.
33. Robert Cover argues that by this time McLean was committed to the bench, and to his relationship with other Justices, especially Story, and that he would only leave the bench "with the support of men like Story" for the presidency and not a lesser position. ROBERT COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 245 (1975). Others argue that he had little interest in the bench or his colleagues, but was only motivated by higher office. WEISENBURGER, supra note 1, at 101-02.
34. HOLT, supra note 21, at 189.
35. 41 U. S. (16 Pet.) 539, 658-73 (1842). For a discussion of Prigg, see infra text accompanying notes 97-99.
36. The uncommon name of the vice presidential candidate led to one of the great rhyming slogans of American politics: "Hurray Hurray, the Country's Risin'; Vote for Clay and Frelinghuysen. "
37. 2 JAMES T. HAVEL, U. S. PRESIDENTIAL CANDIDATES AND THE ELECTIONS: BIOGRAPHICAL and HISTORICAL GUIDE 24 (1996).
38. Letter from Charles Sumner to Salmon P. Chase (Oct. 1, 1847), in Beverley Wilson Palmer, From Small Minority to Great Cause: Letters of Charles Sumner to Salmon P. Chase, 93 OHIO HIST. 164, 169 (1998).
39. Id.
40. Jones v. Van Zandt, 13 F. Cas. 1040, 1046 (C. C. D. Ohio 1843) (No. 7501);
41. Jones v. Van Zandt, 13 F. Cas. 1047, 1054 (C. C. D. Ohio 1843) (No. 7502) [hereinafter Van Zandt II].
42. Fugitive Slave Act of Feb. 12, 1793, ch. 7, 1 Stat. 302.
43. Van Zandt, 13 F. Cas. at 1044; Van Zandt II, 13 F. Cas. at 1052; see also Driskell v. Parish, 7 F. Cas. 1095, 1096 (C. C. D. Ohio 1849) (No. 4088) (upholding the Fugitive Slave Act by implication);
44. Driskell v. Parish. 7 F. Cas. 1093, 1095 (C. C. D. Ohio 1847) (No. 4087) (same);
45. Driskell v. Parish, 7 F. Cas. 1100, 1100-01 (C. C. D. Ohio 1845) (No. 4089) (same);
46. Greathouse v. Dunlap, 10 F. Cas. 1062, 1063 (3 McLean 303) (C. C. D. Ohio 1843) (No. 5742) (same).
47. Jones v. Van Zandt, 46 U. S. (5 How.) 215, 232 (1847).
48. SALMON P. CHASE, RECLAMATION OF FUGITIVES FROM SERVICE. AN ARGUMENT FOR THE DEFENDANT, SUBMITTED TO THE SUPREME COURT OF THE UNITED STATES AT THE DECEMBER TERM, 1846, in the CASE OF WHARTON JONES vs. JOHN VAN ZANDT (1847). For a discussion of Chase's printed brief, see PAUL FINKELMAN, SLAVERY IN THE COURTROOM 70-75 (1985) [hereinafter FINKELMAN, SLAVERY IN THE COURTROOM].
49. 41 U. S. (16 Pet.) 539, 658-74 (1842).
50. Groves v. Slaughter, 40 U. S. (15 Pet.) 449, 464-469 (1841);
51. see PAUL FINKELMAN, AN IMPERFECT UNION: SLAVERY, FEDERALISM AND COMITY 268 (1981) [hereinafter FINKELMAN, AN IMPERFECT UNION] ("His purpose was to protect the right of Ohio and the rest of the North to exclude slaves and slavery.").
52. Paul Finkelman, Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism, 1994 SUP. CT. REV. 247 [hereinafter Finkelman, Story Telling].
53. Chase had recently remarried for the third time, and his new wife was the niece of McLean's second wife. COVER, supra note 27, at 246.
54. Letter from Charles Sumner to Salmon P. Chase (Feb. 7, 1848), in 1 THE SELECTED LETTERS OF CHARLES SUMNER 206, 206 (Beverly Wilson Palmer ed., 1990).
55. Letter from Salmon P. Chase to Charles Sumner (Feb. 19, 1848), in Diary and Correspondence of Salmon P. Chase, in 2 ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSOCIATION FOR THE YEAR 1902, at 131 (1903) [hereinafter ANNUAL REPORT]; see also FREDERICK J. BLUE, SALMON P. CHASE: A LIFE IN POLITICS 58 (1987) (indicating that Chase hoped McLean would receive the Free Soil Party nomination).
56. Letter from Salmon P. Chase to Charles Sumner (Feb. 19, 1848), in 2 ANNUAL REPORT, supra note 44, at 130. Proposed by Congressman David Wilmot of Pennsylvania, the Proviso would have prohibited slavery in any territory acquired from Mexico during the Mexican War. The Proviso passed the House but was defeated in the Senate.
57. Id. at 131.
58. Id.
59. Letter from Salmon P. Chase to Charles Sumner (Mar. 25, 1848), in 2 ANNUAL REPORT, supra note 44, at 132.
60. BLUE, supra note 44, at 64-65.
61. At the time, before the adoption of the Seventeenth Amendment, the state legislatures elected U. S. Senators.
62. BLUE, supra note 44, at 61-73; HOLT, supra note 21, at 400.
63. 2 HAVEL, supra note 31, at 26-27.
64. WILLIAM E. GIENAPP, THE ORIGINS OF THE REPUBLICAN PARTY, 1852-1856, at 311-17 (1987);
65. 2 HAVEL, supra note 31, at 28-30.
66. Carney, supra note 17, at 140-44, argues that McLean's supporter Rufus P. Spalding precipitously withdrew McLean's name as a candidate and thus destroyed his chance of winning the nomination. Carney argues that Spaulding was in fact secretly supporting Frémont. Id. Despite the evidence Carney marshals that Spalding undermined McLean, the best evidence remains that McLean could not have won the nomination over the more charismatic Frémont. For a contrary view, see GIENAPP, supra note 53, 338-41.
67. 2 HAVEL, supra note 31, at 30. Abraham Lincoln was one of the candidates for the vice presidential nomination.
68. As if to underscore the utter confusion of party politics at this time, the Constitutional Union Party officially called itself the American Party, the same official name the Know-Nothings used in 1856.
69. 2 HAVEL, supra note 31, at 31-33.
70. 60 U. S. (19 How.) 393, 564-94 (1857) (Curtis, J., dissenting).
71. 29 U. S. (4 Pet.) 410, 411 (1830).
72. 36 U. S. (11 Pet.) 257, 323-24, 327 (1837).
73. 31 U. S. (6 Pet.) 515, 561 (1832).
74. See generally ROBERT REMINI, ANDREW JACKSON AND HIS INDIAN WARS 277-81 (2001) (discussing President Jackson's legacy and his belief that the nation's well-being required removal of the Native American tribes).
75. 35 U. S. (10 Pet.) 662, 736-37 (1836).
76. 36 U. S. at 349.
77. 36 U. S. (11 Pet.) 420, 583 (1837).
78. 37 U. S. (12 Pet.) 524, 608 (1838).
79. See Train v. City of New York, 420 U. S. 35, 48 (1975) (finding executive did not have authority to allocate less funds to the states than were allocated by Congress);
80. Train v. Campaign Clean Water, Inc., 420 U. S. 136, 137-38 (1975) (same).
81. 42 U. S. (1 How.) 311, 322 (1843).
82. See Jenny B. Wahl, He Broke the Bank, but Did Andrew Jackson also Father the Fed?, in CONGRESS AND THE EMERGENCE OF SECTIONALISM: FROM THE MISSOURI COMPROMISE TO THE AGE OF JACKSON 188, 188-220 (Paul Finkelman and Donald R. Kennon eds., 2008) (discussing Andrew Jackson's destruction of the Second Bank of the United States and how that decision affected both the Panic of 1837 and Crisis of 1839).
83. Id.
84. 290 U. S. 398, 445 (1934) (holding that a provision of the Minnesota Mortgage Moratorium Law, which temporarily extended the allotted time for redeeming real property from foreclosure and sale under existing mortgages, "was addressed to a legitimate end, that is, the legislation was not for the mere advantage of particular individuals but for the protection of a basic interest of society").
85. 45 U. S. (4 How.) 591, 628 (1846).
86. 47 U. S. (6 How.) 301, 344 (1848).
87. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U. S. (11 Pet.) 420, 583 (1837).
88. 47 U. S. at 334.
89. 48 U. S. (7 How.) 283, 392 (1849).
90. Id. at 408-09.
91. Id. at 464, 494, 518.
92. Id. at 410-11. The oddest vote in this case was Justice John McKinley's. He was a states' rights, proslavery Alabamian of little distinction, who logically would have been expected to support the right of states to tax immigrants, as did Daniel and Taney. Like Daniel and Taney, McKinley believed the southern states had a concurrent right to exclude free blacks. He further believed that McLean's position would threaten the rights of the southern states to "repulse" or "tax the nuisance" of free blacks from "Jamaica, Hayti, or Africa." Id. at 508. McKinley, however, concluded that the "migration and importation" clause of Article I, Section 9, of the Constitution precluded the states from taxing migrants after 1808. Id. at 453-55. McKinley argued that the states could not prohibit migrants and immigrants, but that only Congress could. Id. His agenda may have been based on his hostility to northern laws emancipating slaves brought into the free states by visiting slaveowners. At the time, the right of transit with slaves was emerging as a far more important issue to the South than the right to exclude free blacks, which the southern states had successfully been doing for nearly three decades. See generally FINKELMAN, AN IMPERFECT UNION, supra note 41, at 19 (1981) (discussing late antebellum legal jurisprudence and analyzing how legal institutions, including the Supreme Court, attempted to cope with the legal and ethical conundrums posed by the existence of a Union that included both free and slave states).
93. 36 U. S. (11 Pet.) 102, 143 (1837) (upholding a New York statute requiring all vessels to file a passenger report upon entering to the port of New York as a rightful exercise of New York's state police powers).
94. 53 U. S. (12 How.) 299, 321 (1852).
95. Id. at 313-14.
96. Id. at 324.
97. 54 U. S. (13 How.) 518, 557 (1852). See generally ELIZABETH BRAND MONROE, THE WHEELING BRIDGE CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND TECHNOLOGY xvi (1992) (discussing Pennsylvania v. Wheeling and Belmont Bridge Co. and theorizing that "[t]he resolution of the conflict inherent in government support of both land and water transportation sheds new light on the role played by law in the evolution of transportation technology").
98. Wheeling and Belmont Bridge Co., 54 U. S. at 530.
99. Id. at 534-35.
100. Id. at 566.
101. Id. at 580 (Taney, J., dissenting);
102. id. at 594 (Daniel, J., dissenting).
103. 53 (12 How.) U. S. 443 (1852).
104. Pennsylvania v. Wheeling and Belmont Bridge Co., 50 U. S. (9 How.) 647 (1850).
105. Pennsylvania v. Wheeling and Belmont Bridge Co., 54 U. S. (13 How.) 518 (1852).
106. 47 U. S. (6 How.) 507 (1848).
107. 17 U. S. (4 Wheat.) 518 (1819).
108. 41 U. S. (16 Pet.) 435 (1842).
109. 17 U. S. (4 Wheat.) 316 (1819).
110. See supra note 20.
111. 41 U. S. (16 Pet.) 539, 608 (1842).
112. Paul Finkelman, Sorting Out Prigg v. Pennsylvania, 24 RUTGERS L. J. 605 (1993) [hereinafter Finkelman, Sorting Out Prigg v. Pennsylvania]; Finkelman, Story Telling, supra note 41, at 252-56.
113. The Amistad, 40 U. S. (15 Pet.) 518, 587 (1841).
114. GIENAPP, supra note 53, at 314 (1987) (quoting Thomas Hart Benton).
115. His second wife, Sarah Ludlow Garrard, was the daughter of one of the Lane rebels and was very much a committed abolitionist. The Lane rebels were a group of young men who left Lane seminary to "evangelize" for antislavery. ROBERT H. ABZUG, PASSIONATE LIBERATOR: THEODORE DWIGHT WELD AND THE DILEMMA OF REFORM 74-122 (1980);
116. GILBERT HOBBS BARNES, THE ANTISLAVERY IMPULSE 1830-1844, at 74-78 (1933).
117. Fugitive Slave Act of 1793, ch. 7, 1 Stat. 302.
118. Fugitive Slave Act of 1850, ch. 60, 9 Stat. 462.
119. 13 F. Cas. 1040 (C. C. D. Ohio 1843) (No. 7501), aff'd, 46 U. S. (5 How.) 215 (1847).
120. 18 F. Cas. 322 (C. C. D. Ind. 1850) (No. 10, 307). For a more in-depth discussion of this case, see Paul Finkelman, Fugitive Slaves, Midwestern Racial Tolerance, and the Value of "Justice Delayed, " 78 IOWA L. REV. 89, 89 (1992) [hereinafter Finkelman, Fugitive Slaves]. He also upheld the 1793 law in Greathouse v. Dunlap, 10 F. Cas. 1062 (C. C. D. Ohio 1843) (No. 5742), and Driskell v. Parish, 7 F. Cas. 1100 (C. C. D. Ohio 1845) (No. 4089).
121. 62 U. S. (21 How.) 506 (1859).
122. GIENAPP, supra note 53, at 314.
123. Letter from Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), in 7 THE COLLECTED WORKS OF ABRAHAM LINCOLN 281, 281 (Roy P. Basler ed., 1953).
124. Id.
125. Ohio v. Carneal, in OHIO UNREPORTED JUDICIAL DECISIONS, PRIOR TO 1823, at 133, 135 (Ervin H. Pollack ed., 1952).
126. For a discussion of the proslavery aspects of the Constitution, see PAUL FINKELMAN, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE AGE OF JEFFERSON 3-10 (2d ed. 2001).
127. Ohio v. Carneal, supra note 110.
128. Id. at 135.
129. Id.
130. Id. at 139.
131. Id.
132. Id.
133. Id.
134. Id. at 141.
135. Id. at 141-42.
136. The Antelope, 23 U. S. (10 Wheat.) 66 (1825), and The Amistad, 40 U. S. (15 Pet.) 518 (1841), were probably more famous when they were decided but were less significant as legal precedents.
137. Act of Feb. 12, 1793, ch. VII, 1 Stat. 302 ("An Act respecting fugitives from justice, and persons escaping from the service of their masters.").
138. See generally Finkelman, Story Telling, supra note 41, at 247-94.
139. Prigg v. Pennsylvania, 41 U. S. (16 Pet.) 539, 625-26 (1842).
140. Id. at 613.
141. At first glance the position taken by Taney and Daniel-that Congress can force state officials to enforce the federal law-seems counterintuitive to their strong support for states' rights. However, Taney consistently supported a proslavery nationalism and was willing to expand federal power to protect slavery.
142. Prigg, 41 U. S. at 613.
143. Id. at 660-61 (McLean, J., dissenting).
144. Id. at 668.
145. Finkelman, Story Telling, supra note 41, at 275 (citing U. S. Census, 1830, Manuscript Census for Hartford County, Maryland 394).
146. THOMAS C. HAMBLY, ARGUMENT OF MR. HAMBLY, of YORK, (PA.) in the CASE OF EDWARD PRIGG 9 (1842), reprinted in 1 FUGITIVE SLAVES AND AMERICAN COURTS: THE PAMPHLET LITERATURE 129 (Paul Finkelman ed., 1988).
147. Prigg, 41 U. S. at 617-18.
148. Id. at 665 (McLean, J., dissenting).
149. Id. at 667.
150. Id. at 669.
151. Id.
152. Id.
153. Id. at 666 ("[L]aws which are in conflict with the constitution, or the act of 1793... are void.").
154. Id.
155. Id. at 669.
156. Id.
157. Id.
158. Id. at 673.
159. Id. at 666.
160. Id. at 664.
161. Id. at 665.
162. Paul Finkelman, Prigg v. Pennsylvania and Northern State Courts: Antislavery Use of a Proslavery Decision, 25 CIV. WAR HIST. 5, 35 (1979).
163. See Prigg, 41 U. S. at 670-71 (McLean, J., dissenting) (arguing that a statute designed to "prohibit the forcible abduction of persons of color" does not conflict with the Constitution, but that "the master [is] entitled to his property").
164. See id. at 673 ("It appears, in the case under consideration, that the state magistrate before whom the fugitive was brought refused to act.").
165. Id. at 666.
166. Finkelman, Sorting Out Prigg v. Pennsylvania, supra note 98, at 650.
167. 13 F. Cas. 1040 (C. C. D. Ohio 1843) (No. 7501), aff'd, 46 U. S. (5 How.) 215 (1847).
168. 18 F. Cas. 322 (C. C. D. Ind. 1850) (No. 10, 307). For an in-depth discussion of this case see Finkelman, Fugitive Slaves, supra note 105, at 93-195.
169. See Van Zandt, 13 F. Cas. at 1045-46 (stating that much had been made in argument about "the laws of nature, of conscience, and of the rights of conscience, " but that, when the laws indicated to the contrary "[w]e are bound to sustain them").
170. See id. at 1046 (noting that the verdict entered against Van Zandt was twelve hundred dollars);
171. see also SAMUEL P. CHASE, RECLAMATION OF FUGITIVES FROM SERVICE: AN ARGUMENT for the DEFENDANT SUBMITTED TO THE SUPREME COURT OF THE UNITED STATES AT THE DECEMBER TERM, 1846, in the CASE of WHARTON JONES v. JOHN VANZANDT 6 (1847) ("The defendant John Van Zandt, is an old man, of limited education and slender means....").
172. Van Zandt, 13 F. Cas. at 1040.
173. Id.
174. Id. at 1045.
175. See ALBERT B. HART, SLAVERY AND ABOLITION, 1831-1841, at 281-82 (1936) (describing Van Zandt as "an abolitionist, and official of the Underground Railroad").
176. See ANDREW E. TASLITZ, RECONSTRUCTING THE FOURTH AMENDMENT: A HISTORY OF SEARCH AND SEIZURE, 1789-1868, at 166 (2006) (asserting that Van Zandt's farm was a known stop on the Underground Railroad).
177. 18 F. Cas. 322, 322-24 (C. C. D. Ind. 1850) (No. 10, 307).
178. See Finkelman, Fugitive Slaves, supra note 105, 99-116 (describing the members of the mob and later suits lodged against several of them).
179. 17 F. Cas. 335, 341 (C. C. D. Ohio 1853) (No. 9583) ("[U]nder the law, I am bound to remand him to the custody of his master.").
180. COVER, supra note 27, at 243-49.
181. 17 F. Cas. at 336.
182. Id. at 337-40.
183. Id. at 341.
184. Ohio v. Carneal, supra note 110, at 136.
185. 46 U. S. (5 How.) 215, 229 (1847), aff'g 13 F. Cas. 1040 (C. C. D. Ohio 1843) (No. 7501) (reaffirming the constitutionality of the Fugitive Slave Act of 1793).
186. 62 U. S. (21 How.) 506 (1858).
187. See, e.g., Prigg v. Pennsylvania, 41 U. S. (16 Pet.) 539, 667 (McLean, J., dissenting) ("Both the constitution and the act of 1793, require the fugitive from labor to be delivered up, on claim being made [to the person] to whom service is due.").
188. Compare id. at 669-71 (McLean, J., dissenting) (finding within the sovereignty of free states the right to ban slavery and prevent parties from capturing free black citizens by instituting a presumption that they were free rather than fugitive), with id. at 637-38 (Baldwin, J., concurring) (contending that authority to legislate on slave issues rested "exclusively in congress").
189. See, e.g., Dred Scott v. Sandford, 60 U. S. (19 How.) 393, 540-47 (1857) (McLean, J., dissenting) (dissenting vehemently from the Court's judgment that Congress had no authority to ban slavery in the territories).
190. Ohio v. Carneal, supra note 110, at 140 ("If a citizen of another state employ his slaves to labor in this state for his benefit, by such an act, he forfeits the right of property in his slaves.").
191. 22 F. Cas. 939 (C. C. D. Ohio 1838) (No. 13, 245).
192. Id. at 943.
193. Id. at 951. Ironically, one plaintiff in this case, Lysander Spooner, became one of the most radical abolitionists of the antebellum period. See, e.g., Randy E. Barnett, Who's Afraid of Unenumerated Rights?, 9 U. PA. J. CONST. L. 1, 9 (2006) (describing Spooner as among the preeminent radical abolitionists of his day). Even though he lost this case, which involved land he owned in Ohio, Spooner was probably happy to have helped prevent slavery from ever spreading into the Old Northwest.
194. 40 U. S. (15 Pet.) 449 (1841).
195. Id. at 451.
196. See id. at 463 (stating that the provision was directed at "transient merchants").
197. Id. at 500.
198. Id. at 501.
199. Id. at 452.
200. Id. at 450-52.
201. Id.
202. Id. at 476.
203. Id. at 502-03.
204. Id. at 503.
205. Id.
206. Id. at 504 (McLean, J., dissenting).
207. Id. at 506-07.
208. Id. at 507.
209. Id. at 508.
210. Id.
211. Id.
212. Id.
213. E.g., Jones v. Van Zandt, 13 F. Cas. 1040, 1045-46 (C. C. D. Ohio 1843) (No. 7501).
214. Prigg v. Pennsylvania, 41 U. S. (16 Pet.) 539, 669 (McLean, J., dissenting) ("The act, it is admitted... is constitutional, there seems no reason to doubt.").
215. 28 F. Cas. 1115 (C. C. D. Ind. 1845) (No. 16, 903).
216. Id. at 1118.
217. Id. at 1116-17.
218. Id. at 1117.
219. Id.
220. See, e.g., Norris v. Newton, 18 F. Cas. 322, 326-27 (C. C. D. Ind. 1850) (No. 10, 307) (stating in the jury charge that the defendant "cannot claim a right to do that which the law forbids");
221. Ray v. Donnell, 20 F. Cas. 325, 329 (C. C. D. Ind. 1849) (No. 11, 590) ("We must stand firmly by the principles of the constitution, and maintain the rights secured by it... free from all influences which do not arise from the facts and law of the case.");
222. Giltner v. Gorham, 10 F. Cas. 424, 432 (C. C. D. Mich. 1848) (No. 5433) ("The defendants' counsel... have discussed the abstract principle of slavery. It is not the province of this court, or of this jury, to deal with abstractions of any kind.");
223. Jones v. Van Zandt, 13 F. Cas. 1040, 1046 (C. C. D. Ohio 1843) (No. 7501) ("It is your duty to follow the law....").
224. Vaughn, 28 F. Cas. at 1116.
225. Id.
226. Id. at 1116-17.
227. Id. at 1117.
228. Id. at 1118.
229. Id.
230. Id.
231. See id. ("As the claim to the services of these persons is not sustained, if you believe the evidence... you will find for the defendant.").
232. FINKELMAN, AN IMPERFECT UNION, supra note 41, at 248-51.
233. 51 U. S. (10 How.) 82, 97 (1850) (McLean, J., concurring).
234. Id. at 92-93.
235. Id.
236. Id. at 93-94.
237. Id.
238. Id.
239. Id. at 94.
240. Id. at 93-94 (emphasis omitted).
241. Id. at 94.
242. Id.
243. Id.
244. Id. at 97 (McLean, J., concurring).
245. Id.
246. Id. McLean would of course make similar arguments in Dred Scott, noting that once Taney found he lacked jurisdiction in that case, he could not then pass judgment on the validity of the Missouri Compromise. Dred Scott v. Sandford, 60 U. S. (19 How.) 393, 589 (1857) (Curtis, J., dissenting). Justice McLean made a similar point in his dissent. Numerous Republican leaders, especially Abraham Lincoln, would make the same comments about Taney's opinion in Dred Scott. E.g., Christopher L. Eisgruber, Dred Again: Originalism's Forgotten Past, 10 CONST. COMMENT. 37, 60 and n. 95 (1993).
247. Since the 1820s South Carolina had laws in place allowing for the enslavement of free blacks who moved there. Paul Finkelman, States' Rights North and South in Antebellum America, in AN UNCERTAIN TRADITION: CONSTITUTIONALISM AND THE HISTORY OF THE SOUTH 125, 130-32 (Kermit Hall and James W. Ely, Jr., eds., 1989). On the eve of the Civil War, Arkansas would pass a law requiring free blacks to leave the state or be enslaved. An Act to Remove the Free Negroes Mulattoes from this State, Act of Feb. 12, 1859, No. 151, 1859 Ark. Acts 175-78.
248. Strader, 51 U. S. (10 How.) at 97 (McLean, J., concurring).
249. 17 U. S. (4 Wheat.) 316 (1819).
250. 60 U. S. (19 How.) 393 (1857).
251. Most importantly, see AUSTIN ALLEN, ORIGINS OF THE DRED SCOTT CASE: JACKSONIAN JURISPRUDENCE AND THE SUPREME COURT, 1837-1857 (2006);
252. THE DRED SCOTT CASE: HISTORICAL AND CURRENT PERSPECTIVES ON RACE AND LAW (David Konig et al. eds., forthcoming 2010);
253. WALTER EHRLICH, THEY HAVE NO RIGHTS (1979);
254. DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS (1978);
255. PAUL FINKELMAN, DCRED SCOTT v. SANDFORD: A BRIEF HISTORY WITH DOCUMENTS (1997);
256. MARK A. GRABER, DRED SCOTT and the PROBLEM OF CONSTITUTIONAL EVIL (2006);
257. Paul Finkelman, Scott v. Sandford- The Court's Most Dreadful Case and How It Changed History, 82 CHI.-KENT L. REV. 3 (2007) [hereinafter Finkelman, The Court's Most Dreadful Case]; Paul Finkelman, Was Dred Scott Correctly Decided? An "Expert Report" For the Defendant, 12 LEWIS and CLARK L. REV. 1219 (2008).
258. Finkelman, The Court's Most Dreadful Case, supra note 232, at 13-14.
259. Id.
260. Id. at 14-15.
261. Act of Mar. 6, 1820, ch. 22, 8, 3 Stat. 545, 548 (Missouri Enabling Act), invalidated by Dred Scott v. Sandford, 60 U. S. (19 How.) 393 (1857).
262. Act of Apr. 20, 1836, ch. 54, 12, 5 Stat. 10, 16 (establishing the territorial government of Wisconsin). This law went into effect on July 23, 1836. Finkelman, The Court's Most Dreadful Case, supra note 232, at 15 n. 6.
263. Dred Scott, 60 U. S. at 530 (McLean, J., dissenting).
264. Finkelman, The Court's Most Dreadful Case, supra note 232, at 19-20.
265. Id. at 13-14.
266. Winny v. Whitesides, 1 Mo. 472 (1824).
267. Id. For a full history of this case see FINKELMAN, AN IMPERFECT UNION, supra note 41, at 217-28 (describing Winny and its progeny in the Missouri courts and their effect on Dred Scott).
268. See supra notes 199-213 and accompanying text.
269. Finkelman, The Court's Most Dreadful Case, supra note 232, at 22-23.
270. Scott v. Emerson, 15 Mo. 576, 577-81 (1852), aff'd in part, reversed in part sub nom. Dred Scott v. Sandford, 60 U. S. (19 How.) 393 (1857) (rejecting a long line of precedent to find that Scott had returned to a condition of slavery after returning to the state, even if entry into free states had made him free there).
271. Strader v. Graham, 51 U. S. (10 How.) 82, 93-94 (1850).
272. Finkelman, The Court's Most Dreadful Case, supra note 232, at 23-24.
273. Id. at 23-24, 38.
274. Id. at 23-24. John Sanford spelled his name with only one "d." However, the clerk of the Supreme Court added a "d" to his name, and thus the case is forever known and cited as Dred Scott v. Sandford.
275. Id.
276. Id. at 24-25. See generally KENNETH C. KAUFMAN, DEED SCOTT'S ADVOCATE: A BIOGRAPHY OF ROSWELL M. FIELD (1996).
277. Finkelman, The Court's Most Dreadful Case, supra note 232, at 25-26.
278. Dred Scott v. Sandford, 60 U. S. (19 How.) 393, 471 (1857) (Daniel, J., concurring).
279. Finkelman, The Court's Most Dreadful Case, supra note 232, at 13, 25-26.
280. Id. at 26.
281. Id. at 27.
282. Dred Scott, 60 U. S. at 530-31 (McLean, J., dissenting).
283. Finkelman, The Court's Most Dreadful Case, supra note 232, at 28-29.
284. Id. at 28.
285. Id. at 46.
286. Paul Finkelman, The Dred Scott Case, Slavery and the Politics of Law, 20 HAMLINE L. REV. 1, 6-7 (1996).
287. Dred Scott, 60 U. S. at 422-23.
288. Id. at 449-52.
289. Id. at 452-54.
290. E.g., Finkelman, The Court's Most Dreadful Case, supra note 232, at 45 (describing newspaperman and Republican Horace Greeley's reprinting of the Curtis dissent in pamphlet form to stoke antislavery political spirit).
291. Id. at 30-31 (referring to Curtis as "not even moderately antislavery").
292. Id. (describing Curtis as a Cotton Whig);
293. Edward M. Maltz, The Last Angry Man: Benjamin Robbins Curtis and the Dred Scott Case, 82 CHI.-KENT L. REV. 265, 265-269 (2007) (relating Curtis's personal and political history of "dispassionate" views on issues of slavery and identification as a Cotton Whig).
294. E.g., G. Edward White, The Internal Powers of the Chief Justice: The Nineteenth Century, 154 U. PA. L. REV. 1463, 1476 (2006).
295. Dred Scott, 60 U. S. at 530-31 (McLean, J., dissenting).
296. Id.
297. Id.
298. Id.
299. Id. at 407-418 (outlining a lengthy historical survey of laws at the time of the founding as evidence of the "inferior and subject condition of that race" and, by implication, their lack of citizenship).
300. Id. at 533 (McLean, J., dissenting).
301. Id.
302. Paul Finkelman, Race, Slavery, and the Law in Antebellum Ohio, in 2 THE HISTORY OF OHIO LAW 748 (Michael Les Benedict and John F. Winkler eds., 2004);
303. Paul Finkelman, The Strange Career of Race Discrimination in Antebellum Ohio, 55 CASE W. RES. L. REV. 373 (2004).
304. Dred Scott, 60 U. S. at 533 (McLean, J., dissenting).
305. Id. at 538-47.
306. Id. at 539.
307. Id. at 539-40.
308. Id. at 540.
309. See id. at 540-47 ("If Congress may establish a Territorial Government in the exercise of its discretion, it is a clear principle that a court cannot control that discretion. ").
310. Id. at 537.
311. Id. at 554-55.
312. See id. at 557-62 (contending that such a rule of law was necessary to maintain comity between the states).
313. Id. at 558.
314. Id. at 559.
315. Id.
316. See COVER, supra note 27, at 247 (quoting Chase as stating he believed that McLean, in rendering the Van Zandt decision, "fell into great error");
317. Jules Lobel, Courts as Forums for Protest, 52 UCLA L. REV. 477, 500 (2004) (quoting Chase that if McLean's Van Zandt opinion stood, the "Declaration of Independence [is] a fable").
318. Finkelman, The Court's Most Dreadful Case, supra note 232, at 30 n. 98.
319. FINKELMAN, SLAVERY IN THE COURTROOM, supra note 38, at 50.
320. See Alan F. Westin, Out-of-Court Commentary by United States Supreme Court Justices, 1790-1962: Of Free Speech and Judicial Lockjaw, 62 COLUM. L. REV. 633, 639 (1962) (discussing the negative reactions even of supporters to McLean's extrajudicial statements during his "perennial" political candidacy).
321. SPRAGUE, supra note 3, at 33.
322. Id. at 29.