Paul Finkelman1President and Professor of History, Gratz College. B.A., Syracuse, 1971; M.A. and Ph.D., University of Chicago, 1972, 1976. Fellow in Law and Humanities, Harvard Law School, 1982–83. President William McKinley Emeritus Professor of Law, Albany Law School. I thank Candace Jackson Gray for her help in researching census and tax records connected to Marshall’s slaveholding, and Charles F. Hobson, Tim Huebner, Alysa Landry, and R. Kent Newmyer for their many comments on early versions of this piece.
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This is the first Essay in a two-part series exploring Chief Justice John Marshall’s private and public relationship to slavery. You can read Part II here.
This is the first of two Essays exploring Chief Justice John Marshall’s private and public relationship to slavery. Both Essays come from my recent book, Supreme Injustice: Slavery in the Nation’s Highest Court,2Paul Finkelman, Supreme Injustice: Slavery in the Nation’s Highest Court (Harvard 2018). I thank Harvard University Press for allowing me to reprint material from that book in this Essay. published by Harvard University Press. That book discusses other justices, but here I focus solely on Marshall because of his preeminent place in American jurisprudence and because my discoveries about Marshall’s relationship to slavery (partially set out in these articles) surprised me and have startled many other scholars. In this Essay I examine Marshall’s personal relationship to slavery. In the second Essay I consider some of his slavery jurisprudence.
I. The Great Chief Justice, Slavery, and Biography
Chief Justice Marshall is rightly considered our greatest chief justice. For nearly three and half decades—longer than any other chief justice—this icon of constitutional history led the Court, shaping our law. Two centuries later his jurisprudence lives on. Five of the ten opinions most cited by the Supreme Court itself are Marshall’s. Cultural symbols remind us of his importance. An imposing, six-foot bronze statue of him, sculpted by William Wetmore Story (the son of his closest Court colleague, Joseph Story) sits outside the Supreme Court building. A smaller, marble one sits inside the building. Four law schools bear his name. He has been on four U.S. postage stamps, a commemorative silver dollar, a $20 Treasury note, and a $500 Federal Reserve note.
The universally admiring scholarship on Marshall ignores his personal and judicial relationship with slavery. Jean Edward Smith’s mammoth biography never mentions Marshall’s decisions on black freedom or his early decisions on the African slave trade.3Jean Edward Smith, John Marshall: Definer of a Nation (Holt 1996). Volume two of the Oliver Wendell Holmes Devise History of the Supreme Court, covering 1801 to 1815, does not discuss any of his cases involving black freedom or the African slave trade.4George Lee Haskins and Herbert A. Johnson, 2 History of the Supreme Court of the United States: Foundations of Power: John Marshall, 1801–1815 (Macmillan 1981). In the second Marshall volume, covering his last two decades on the Court, Professor G. Edward White astonishingly (and incorrectly) claims: “John Marshall was not a slave owner,” even as White discusses slaveholding by his fellow justices.5G. Edward White, 3-4 History of the Supreme Court of the United States: The Marshall Court and Cultural Change, 1815–1835 689 (Macmillan 1988). Such an erroneous claim in this monumental history of the Marshall Court, underscores the failure of scholars to come to terms with Marshall’s relationship with slavery as a jurist or a private citizen and an investor.
Slavery is simply invisible to most Marshall biographers, even though Marshall personally owned hundreds of slaves, his court heard more than fifty cases involving slavery, and Marshall wrote numerous opinions on slavery. But slavery does not accord with the filiopietistic narrative of “the Great Chief Justice,” and so, with the exception of Professor R. Kent Newmyer,6R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (Louisiana State University 2001). biographers at most offer a cursory mention.
Charles F. Hobson, the long-time editor of The Papers of John Marshall, asserts the Chief Justice heard “relatively few freedom suits.”710 The Papers of John Marshall 156 (ed. Charles F. Hobson) (University of North Carolina 2000). But “relatively” is a relative term. The Marshall Court heard fourteen cases involving black freedom. The Chief Justice wrote the majority opinion in seven, and in every case the slaves lost. Justice William Johnson, of South Carolina, wrote the opinion rejecting freedom in one case in 1827. In six other cases, decided from 1829 to 1835—when Marshall no longer totally dominated the Court—other justices, including two southern slaveowners, wrote opinions upholding black freedom. That others wrote these opinions suggests Marshall did not agree with the results. But, in an era when dissents were rare—Marshall only wrote six dissents in his lifetime—the chief justice’s silence is deafening.
Given the nineteenth-century Court’s limited jurisdiction and the cost and difficulty of appealing to the Court, especially for a slave, we might conclude that fourteen was actually a large number of cases. But whether “relatively few” or “relatively many,” the outcome of these cases is striking: Chief Justice Marshall never wrote an opinion supporting black freedom. In some of these cases Marshall overturned lower court decisions, from slaveholding jurisdictions, emancipating the slave plaintiff. In cases involving the African slave trade Marshall was equally hostile to liberty, almost always siding with defendants, who had participated in the African slave trade in violation of U.S. law.8For a more complete discussion of Marshall’s decisions on the suppression of the African slave trade, see Finkelman, Supreme Injustice 76–111.
Significantly, Marshall’s proslavery decisions predated the emergence of antislavery politics, the abolitionist movement, and the nullification crisis, which pushed slavery and sectionalism onto the national political stage. However, other justices—including the slaveholders James Wayne and Gabriel Duvall—ruled in favor of freedom after slavery emerged as a significant political issue. Thus, despite claims by some biographers, Marshall’s proslavery and anti-black jurisprudence was not a response to southern proslavery politics.
Marshall’s greatness stemmed from his creativity and courage. He challenged presidents, popular feelings, and powerful state politicians. He infuriated Thomas Jefferson by derailing his attempt to have Aaron Burr hanged for treason. He withstood vicious attacks from states’ rights politicians in his home state for his nationalist opinions in M’Culloch v. Maryland and Cohens v. Virginia. Neither his supporters nor his opponents ever accused Marshall of being timid or narrow in his jurisprudence. He was the “Great Chief Justice” because he was bold, fearless, forceful, and often brilliant.
But Marshall’s opinions in slave cases were narrow, cramped, timid, and consistently hostile to freedom.910 Papers of Marshall 156; Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law 164 (University of Kansas 1996). Justices bring to the Court political, social, economic, and personal interests. Marshall’s nationalist jurisprudence emerged from his experiences as a Revolutionary War officer, diplomat, and Federalist politician. His commercial and economic jurisprudence reflected his vast landholdings and investments in banks, canals, and railroads.
His jurisprudence on slavery and race similarly reflected Marshall’s life as slave owner and his deep hostility to the very presence of free blacks. Marshall’s massive personal investment in human bondage and his nonjudicial public life inform his slavery jurisprudence.
Marshall’s best biographer, R. Kent Newmyer, says Marshall’s slavery jurisprudence is “painful to observe,” but asserts Marshall “adhered to the law of slavery” only “because his system of federalism deferred to the states on questions of slavery.” But this analysis fails. With two exceptions involving the Northwest Ordinance, none of the Marshall Court’s slave cases involved conflicts between the national government and state laws.10Newmyer, John Marshall and the Heroic Age, 434. Nor was Marshall’s slavery jurisprudence shaped by the need to fend off proslavery southern ideology. None of the Marshall Court’s slavery cases threatened the system of slavery, challenged state law, or touched on the politically charged issue of returning fugitive slaves. It might be comforting to explain Marshall’s decisions against freedom as a function of his desire to respect the states or his fear of radical proslavery sectionalists, but, as I set out in the article following this one, none of the cases he decided touched on these issues.
We must examine Marshall’s jurisprudence in the context of his personal relationship with slavery. Before I published Supreme Injustice all of Marshall’s biographers ignored his massive slaveholding. We were told he was the “owner of a modest number of slaves” or that he “maintained a small holding of slaves,” or that he “experienced slavery primarily as an urban slave owner,” with about a dozen “house servants” in Richmond.11Hobson, Great Chief Justice, 164. Leonard Baker, John Marshall: A Life in Law 11, 714–715 (Macmillan 1974); Frances Howell Rudko, Pause at the Rubicon, John Marshall and Emancipation: Reparations in the Early National Period? 35John Marshall L Rev 75, 77 (2001); Newmyer, John Marshall and the Heroic Age, 415.
All these claims are incorrect. Marshall owned hundreds of slaves during his lifetime. He owned plantations and clearly profited from them. In 1830, five years before his death, he owned about 150 slaves. Had he not given a substantial number of slaves to his sons, Marshall would have owned more than 250 slaves.12For the data on his slaveholding, see Supreme Injustice, 44–49. Unlike his distant cousin Thomas Jefferson, Marshall did not inherit these slaves; rather, he bought them throughout his life.
Furthermore, throughout his public career Marshall publicly and privately opposed the presence of free blacks in America. He petitioned the Virginia legislature to fund removing them from the state.
II. Marshall and Slavery: The Pre-Court Years
Chief Justice Marshall was born in 1755 in what is today Fauquier County, Virginia, about forty-five miles west of present-day Washington, D.C. When the Revolution began, his father, Thomas Marshall, a local political leader, commanded the county militia and ended the war as a full colonel. By 1780 Thomas Marshall owned twenty-two slaves at his two-thousand-acre Oak Hill plantation. Through his mother, Mary Randolph Keith Marshall, John was related to the Randolph, Lee, and Jefferson families.131 Albert J. Beverage, The Life of John Marshall 37, 50–68, 69, 95–96, 167 (4 vols) (Houghton Mifflin 1916).
John Marshall fought at Germantown, Brandywine, and Monmouth, and served under George Washington at Valley Forge, ultimately being promoted to the rank of captain.14Newmyer, John Marshall and the Heroic Age, 2–11. His service with men from other states left him a committed nationalist. In 1779, Marshall left the army, briefly studied law under George Wythe at the College of William and Mary and was admitted to the bar in 1780. In 1782 Fauquier County elected him to the Virginia legislature. In 1783 he married Mary “Polly” Ambler, whose father, Jaquelin Ambler, was the state treasurer. For a wedding present Thomas Marshall gave his son one slave, Robin Spurlock, and three horses. By 1784 John Marshall had a thriving law practice in Richmond. He vigorously supported the Constitution at the Virginia ratifying convention, helped organize the state’s Federalist Party, again served in the legislature, and began acquiring vast lands, including at least 215,000 acres from the estate of the former royal governor, Thomas, Lord Fairfax.15Hobson, Great Chief Justice, 3; Smith, John Marshall, 164–68. During this period Marshall began purchasing slaves in significant numbers.
In 1797, as an envoy in Paris, Marshall negotiated with the French foreign minister Talleyrand to reduce tensions between the two nations. The negotiations failed, but Marshall emerged as a national figure after his dispatches exposed the demands of French officials for bribes in the XYZ Affair. Marshall returned a hero, won a seat in Congress in 1798, became secretary of state in May 1800, and assumed the chief justiceship in March 1801.
From 1801 until his death in 1835, Marshall wrote 58 percent of the Court’s opinions: 508 majority opinions, 25 concurrences, and just 6 dissents. Until the mid-1820s he dominated the Court16Herbert Johnson, The Chief Justiceship of John Marshall, 1801–1835 87, 88–89, 90 (1997); Albert P. Blaustein and Roy M. Mersky, The First Hundred Justices: Statistical Studies on the Supreme Court 142 (1978). See also Newmyer, John Marshall and the Heroic Age 399, describing his dominance on the Court. G. Edward White reports that Marshall wrote 519 signed decisions. G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges 14 (Oxford 2007). and wrote almost every decision on slavery, shaping a jurisprudence that was hostile to free blacks and exceedingly lenient to people who violated the federal laws banning the African slave trade. Starting in the late 1820s, precisely when Marshall was losing his dominance, the Court was more supportive of freedom claims by blacks and more hostile to slave traders. Marshall wrote none of these decisions.
Marshall vigorously supported a strong national government, Congressional power, and the supremacy of the Constitution. He challenged states’ rights politicians, military officials who exceeded their authority, opponents of the Bank of the United States, and presidents. Savvy, shrewd, and often brilliant, Marshall never sought political confrontation, but neither did he shy away from interpreting the Constitution and federal law to support his nationalism.17See, for example, Fletcher v. Peck; M’Culloch v. Maryland; Cohens v. Virginia. He derailed Jefferson’s transparently vengeful efforts to hang Aaron Burr for treason, preventing Jefferson from incorporating into American law the arbitrary ideas of constructive treason used to punish the political opposition in England. Marshall had no sympathies for Burr, a self-serving huckster and fraud, but he fiercely insisted on a strict application of the Constitution’s treason clause.
Given Marshall’s deft hand, sharp mind, and courage, he might very well have shaped American jurisprudence to uphold freedom claims of black petitioners and to vigorously suppress the illegal African slave trade. But he did not take this road. Instead, his slavery jurisprudence was clumsy and uninspired. He could find justice for the scoundrel Aaron Burr, but not for individuals whose only “crime” was their race.
Similarly, he waxed eloquently about natural law and the law of nations to defend property rights, praise the inviolability of contracts, and condemn bankruptcy laws. In one of his rare dissents he denounced New York’s bankruptcy law because contract law “is, undoubtedly, much strengthened by the authority of those writers on natural and national law, whose opinions have been viewed with profound respect by the wisest men of the present, and of past ages.” But he emphatically denied natural law had any place when considering violations of laws banning the African slave trade. Despite a federal statute, declaring slave trading piracy, Marshall asserted the trade “cannot in itself be piracy.” Thus, Marshall found that kidnapped Africans illegally brought to the United States would remain slaves.
III. Master John Marshall: Slaveholder in the New Nation
Chief Justice Marshall’s slavery jurisprudence reflected his personal ties to human bondage. Unlike his cousin Thomas Jefferson, Marshall did not spout fine phrases about equality while privately buying and selling human beings. Marshall occasionally criticized slavery, such as his statement in The Antelope that it was “contrary to the law of nature” because “every man has a natural right to the fruits of his own labour.” But he simultaneously refused to apply natural law to the case or vigorously uphold the federal ban on the trade. His jurisprudence suggests no discomfort with slavery. This patriotic veteran of the struggle for American liberty, had no sympathy for black liberty.
If Marshall had possessed only a dozen slaves while living in Richmond, as his biographers claim, this would have been an enormous commitment to human bondage. But Marshall was far more than an urban master with a “modest number of slaves” taking care of his family’s daily needs.18Hobson, Great Chief Justice 164; Newmyer, John Marshall and the Heroic Age 415. By 1830 he owned more than one hundred and fifty slaves, and this was even after giving about seventy slaves to his sons Jaquelin and Edward in the 1820s and probably also giving slaves to his other sons and relatives. In the Virginia constitutional convention, he vigorously supported counting slaves for representation in the state legislature, to preserve the power of the planter aristocracy. When he died, he did not free the dozen or so personal slaves who had loyally served him throughout his life, much less any of those toiling on his plantations.“19Revoked Will and Codicils, 12 April 1827–August 1830,” 11 Papers of Marshall 6, 7, 8. “Additional codicil to my will, Aug. 17th. 1830,” 11 Papers of Marshall 9. Marshall bought and sold slaves throughout his life, which meant many of his slaves were exiled from family and friends. This is a kind of cruelty that exceeds physical punishment. For example, in 1787 Marshall recorded buying a woman and her child without commenting on whether the purchase forced her to leave her husband and perhaps other children.201 Papers of Marshall 317 n 31, 363, 386–387 nn 27–29.
Marshall’s early account books, although sometimes vague and incomplete, show his aggressive accumulation of slaves. In October 1783 Marshall bought Moses for £74. On July 1, 1784, he paid just over £90 for Ben. Three days later, on the Fourth of July—ironically, the first anniversary of the signing of the Declaration of Independence since the Revolution ended—he bought two slaves for £30, probably children named Edey and Harry. He also paid £20 “in part for two servants.” In September he paid another £25 for unnamed and uncounted “servants.” In November he bought Kate and Esau.211 Beverage, Life of Marshall 167, 181; 1 Papers of Marshall 296, 297, 305, 308, 317, 317 n 31, 319 n 38. Thus from October 1783 to November 1784 Marshall bought nine named slaves plus various unnamed and uncounted “servants.” These were in addition to a few slaves he already owned in Richmond, nine slaves in Henrico County, and “other slaves . . . on his Fauquier County plantation.”221 Papers of Marshall 123; 1 Beverage, Life of Marshall 187–88. In April 1787 he bought Israel for £55 and in May paid another £55 for “a Woman bought in Gloster.” On June 3 he made a down payment of just under £11 for two more slaves and paid for the burial of Sam; there is no record of when he acquired Sam. As he had in 1784, Marshall spent July 4, 1787 buying slaves—this time a woman and her child, both of whom he passed on to his father-in-law Jaquelin Ambler. That day he also paid money he owed on another slave he had purchased. In August he paid another £30 on slaves he had bought in Gloucester and he also bought an unnamed “negroe man” for £47.231 Papers of Marshall 363, 377, 377 n 89, 383, 385, 386–387 nn 27–29, 389, 408.
His account books show he purchased fifteen enumerated slaves for himself, and a few for others, over a four-year period. But there are also purchases with no specific number of slaves attached. Initially he recorded the names of slaves he purchased, but he gradually abandoned this practice. He bought a “woman,” a “negroe man,” and “two slaves.” In October 1789 he paid £38 for “a negroe woman.”242 Papers of Marshall 46, 349, 351, 375, 406. Occasionally he still noted names, such as the purchase of Hannibal for £70 in March 1789 and the purchase of “Negro Bob” for £50 in January 1790. Emblematic of his inconsistent use of names for the human being he bought, was the expenditure of £130 in June 1790 “for Dick and others.”25Id. at 356, 382, 396.
Marshall’s account books and the Richmond property records, incomplete as they are, illustrate his relentless investment in slaves. In the 1780s, just married and with no children, he bought far more slaves than he needed to run his household. By the 1790s with many more slaves purchased for his estates in Henrico and Fauquier counties, Marshall on his way to becoming a wealthy southern planter, owning hundreds of slaves.
There are no account books for Marshall after the late 1790s. Thus, evidence of his more extensive slaveholding comes from census records and the will he wrote in 1827 and rewrote twice. In the first paragraph of his 1827 will Marshall bequeathed to his wife twelve named slaves along with the unnamed “children born and to be born” of his slave Sally.“26Revoked Will and Codicils, 12 April 1827–August 1830,” 11 Papers of Marshall 5. This seems to be where his biographers came up with the erroneously notion that Marshall only owned a dozen slaves. But in fact, these are not the only slaves mentioned in the will.
The will also provided that “all the slaves” on his Mont Blanc plantation would be held in trust for the benefit of the wife and children of his son John Jr. In 1831 there were thirty-one slaves on this property, all owned by Marshall. The Chief Justice bequeathed to his son Edward Carrington Marshall the land he was living on with “all my slaves and property of every description usually on the said lands.” By 1830 there were twenty-seven slaves on that property. In this will Marshall also provided for the disposition his slaves on his “tract of land on chiccahominy.” In 1830 the U.S. Census recorded sixty-two slaves at the Chickahominy plantation.27“Revoked Will and Codicils, 12 April 1827–August 1830,” 11 Papers of Marshall 6, 7, 8. “Additional codicil to my will, Aug. 17th. 1830,” 9 Papers of Marshall 9; U.S. Census, 1830, NARA microfilm publication M19 (Washington, D.C.: National Archives and Records Administration, n.d.).
Marshall rewrote his will twice, but the bequests of slaves remained substantially the same, although after the death of his wife the slaves set aside for her, along with those at Chickahominy were put in trust for his daughter. In 1830 the census recorded 130 slaves on these properties. This is in addition to other properties, not listed in Marshall’s will, where he had slaves in 1830.
In an 1832 codicil Marshall expressed his “wish to emancipate my faithful servant Robin.”28“Codicil to the Forgoing will of John Marshall, 13 August 1832,” 12 Papers of Marshall 193–198. His full name was Robin Spurlock but, even when contemplating freeing him, Marshall did not dignify him with a last name. Marshall’s father had given him Robin Spurlock as a wedding present in 1783. Marshall also owned Spurlock’s daughter, Agnes, but did not offer to free her. Some scholars might see this offer of freedom as an indication of Marshall’s humanitarianism, but emancipating one slave among so many is hardly compelling evidence of that. Even Thomas Jefferson emancipated more slaves than that, although all of them were members of the Hemings family and thus related to him.29Sally Heming was the child of John Wayles, who was also the father of Jefferson’s wife, Martha. Thus, Sally and her siblings were Jefferson’s half-in-laws, while Sally’s children were also his own children, as well as also being his half-nieces and nephews. Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson 193-280 (3rd ed.) (Routledge 2014).
Robin Spurlock would in fact never gain his freedom. The codicil promised him fifty dollars if he accepted freedom in the United States and one hundred dollars if he moved to Liberia. As Marshall well knew, Virginia law required manumitted slaves to leave the state or “apply” to a local court “for permission to reside within such county or corporation.” To remain in Virginia as a free man, Spurlock needed the intervention of a white patron, probably a lawyer. The options for Spurlock, who was over seventy at the time, were hardly attractive. Without a lawyer’s help, which Marshall did not provide, he could be free only by abandoning his family and friends to live in another state or Africa. The codicil also allowed him to choose an owner from among Marshall’s children. Not surprisingly, Spurlock chose to stay in Richmond, held in trust for Marshall’s daughter, Mary Harvie.
Marshall, the wealthy lawyer and planter, could have easily made sure his elderly “faithful servant Robin” remained in Richmond, living among friends and family, with enough money to spend his remaining years as a free man. But Marshall took no steps to free him when he was alive and failed to direct his executors to hire counsel to petition the court on his behalf. This codicil, which came to nothing, speaks volumes about his views on race and his lifelong support for slavery. The “greatness” of the chief justice is apparent when we parse his opinions; he is less great when we parse this codicil in his will.
In 1833 John Jr. died, leaving his wife and children with many debts. Marshall felt obligated to pay off John Jr.’s creditors.30Baker, A Life in Law, 562–63. Marshall held stock in banks, turnpikes, and other companies, owned land throughout the state, and collected interest on money he had loaned out. Instead of settling John’s estate with these assets, he directed his son James Keith to sell the Mont Blanc slaves to pay the debts.31John Marshall to James K. Marshall, April 12, 1834, and May 19, 1834, in 12 Papers of Marshall 403, 411. Marshall wanted to protect his daughter-in-law, his grandchildren, and avoid the embarrassment of his family being thrown into poverty by creditors. Marshall achieved the admirable goal of protecting his own family by increasing the misery of the slaves who had worked for years to support his family. The auction would inevitably destroy slave families—separating husbands, wives, children, and siblings. Marshall’s actions contrast with his hero, George Washington, who famously refused to sell slaves “as you would do cattle at a market.”32On Washington and slaveholding, see Finkelman, Slavery and the Founders, 200. Marshall, the first great biographer of Washington, learned little from how a true hero of the Republic—even a slaveholder’s republic—should treat people, including slaves.
In addition to selling slaves to pay his John Jr.’s debts, how many slaves did Marshall give to his other sons? He gave twenty-seven slaves to his son Edward sometime before 1830. In 1810 the twenty-three-year-old Dr. Jaquelin Marshall, was single and owned no slaves. In 1820 he was recently married, owned forty-seven slaves, and lived on Marshall’s Prospect Hill plantation, in Fauquier County. These were almost certainly a wedding present from his father.33Newmyer, John Marshall and the Heroic Age 416. U.S. Census, 1820, NARA microfilm publication M33, M19 (Washington, D.C.: National Archives and Records Administration, n.d.). Newmyer, John Marshall and the Heroic Age, 327. In 1830 his son Thomas had sixty-four slaves at the Oak Hill plantation, which John gave him sometime before 1827. It seems likely he also gave him the slaves. His son James Keith had forty-seven slaves on the Leeds plantation, also a gift from Marshall. Were the slaves a gift as well? In 1830 the Chief Justice owned more than 150 slaves in Richmond, Henrico, and Fauquier, but collectively Marshall and his sons owned more than 250 slaves.
It is impossible to know how many slaves Marshall owned at any one time, or over his lifetime. Many tax and probate records no longer exist. The census records were never entirely accurate and are sometimes vague about who actually owned slaves on particular parcels of land. Nevertheless the 1830 census shows that there were over sixty slaves on the Chickahominy plantation, thirty-one at Mont Blanc (where John Jr. lived), twenty-one held for him by his overseer Thomas Hilary in Fauquier, and twenty-two at his “quarters” in Henrico. The 1830 census listed eight slaves in Marshall’s house in Richmond,34Newmyer, John Marshall and the Heroic Age 415–16; John Marshall to James K. Marshall, May 19, 1834, Papers of Marshall, 411; 1830 U.S. Census, NARA microfilm publication M19, M33. but this is likely an undercount, because his will written a year later listed fifteen slaves in Richmond plus some unnamed and unnumbered “children.”35“Revoked will and Codicils, 24 September 1831–5 January 1832,” 12 Papers of Marshall 100. This does not include the twenty-seven slaves he had just given to Edward or the forty-seven Jaquelin owned in 1820.
It is simply wrong to claim, as his biographers do, that Marshall “experienced slavery primarily” as an urban slave owner, was never involved in “large-scale agriculture,” and “had no significant holdings” of slaves. Equally wrong is the claim that “it is doubtful that he traded in slaves.”36Newmyer, John Marshall and the Heroic Age 414; Jean Edward Smith, John Marshall: Defender of a Nation 162, 164–68 (1996); Baker, A Life in Law 715. Since he started his adult life with a single slave, and owned at least 150 in 1830, it is crystal clear that he accumulated these slaves because he “traded in slaves” throughout his life. His own record books and letters show that in the 1780s and 1790s he regularly bought slaves and in 1833 he auctioned off slaves to pay John Jr.’s debts. His three score slaves at Chickahominy, worked the fields, adding to his wealth. He also monitored slaves on at least three plantations in Fauquier County. The “Great Chief Justice” spent a lifetime in the business of buying, giving away, and sometimes selling slaves.
Marshall wrote little about slavery and left no paper trail of insensitivity and hypocrisy like Jefferson or grotesque racist statements about blacks in his opinions, like Chief Justice Roger B. Taney. Though, he did leave a paper trail of racist statements about Native Americans, characterizing them in Johnson’s and Graham’s Lessee v. M’Intosh as “fierce savages, whose occupation was war.” Nevertheless, Marshall’s vast slaveholding forces a reconsideration of his views on slavery and race while helping us understand his proslavery jurisprudence (as the essay following this one details).
Kent Newmyer claims that “He neither condemned nor defended slavery itself, but simply accepted it, along with racial prejudice and social inequality, as a part of the ‘actual state of the world.’”37Newmyer, John Marshall and the Heroic Age 414, 418. But Marshall more than “accepted it.” He actively participated in slavery and slave trading, on a very personal level. Unlike Jefferson, who inherited his hundreds of slaves, Marshall aggressively bought slaves. In Marshall’s lifetime some prominent Virginians—among them Robert Pleasants, Edward Coles, Robert Carter, and George Washington—manumitted their slaves. Marshall just bought more slaves, gave many to his children, and sold some, “as you would do cattle at a market.”38Finkelman, Slavery and the Founders 200. Slaves were a constant factor in his personal life, his economic success, and his family’s future. He was personally fully invested in slavery. This affected his jurisprudence and his public activities off the bench.
IV. John Marshall, Slavery, and the Shaping of American Law
Marshall became Chief Justice before slavery emerged as a central issue—eventually becoming the central issue—of American politics. During Marshall’s lifetime slavery virtually disappeared in the North. In 1800, just before Marshall went on the Court, there were more than 37,000 slaves in the North. By 1840 (just a few years after Marshall’s death) only about 1,100 slaves remained in the North. Meanwhile, Congress prohibited Americans from any personal or financial involvement in the African slave trade in the decade before Marshall went on the Court, and completely banned the trade on January 1, 1808. By the 1820s Congress had declared the trade to be piracy, punishable death. But, while slavery died out in the North, it thrived in the South. There were eight southern slave states and about 900,000 slaves in the U.S. when Marshall came on the Court and about 2,250,000 slaves and twelve slave states when he died.39See Arthur Zilversmit, The First Emancipation (University of Chicago 1967) and Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (University of North Carolina 1981).
The first great political debate over slavery, centering around Missouri statehood, took place in 1819–21, after Marshall been on the court almost two decades. That debate ended in a “compromise” and slavery mostly receded from the national stage for nearly a decade.
In 1816 political leaders and philanthropists formed the American Colonization Society (ACS) to remove free blacks to Africa, to what eventually became Liberia. Some ACS leaders opposed slavery and believed that helping free blacks move to Africa would encourage private manumissions. Others were active slave owners who saw Liberia as a place where the United States could rid itself of free blacks. From its founding until the Civil War the ACS sent about 13,000 blacks to Liberia—almost all of them recently manumitted slaves.
A life member of the ACS and president of its Richmond branch, Marshall supported colonization with his time, prestige, and lobbying efforts. But he never considered manumitting his own slaves and resettling them in Liberia. His colleague Justice Bushrod Washington was the national president of the ACS from its founding until his death in 1829. During this period Justice Washington sold many of his own slaves but sent none to Liberia.
Marshall’s leadership in the ACS was not inspired by any personal discomfort with slavery. Rather, it stemmed from his hostility to free blacks and his fear of slave rebellions. He argued the entire nation “could be strengthened” by the “removal of our colored population.” He believed the “danger” from free blacks “can scarcely be estimated.”40Marshall to Ralph R. Gurley [Secretary of the ACS], Dec. 14, , 12 Papers of Marshall 131–32. The ACS was safe, comfortable, and conservative, led by Federalists and future Whigs, like Marshall, Bushrod Washington, and Henry Clay. It never challenged slavery on moral or political grounds, and was at most mildly antislavery, because some masters manumitted their slaves to send them to Liberia.
Black and white opponents of slavery denounced the ACS as racist and pro-slavery. In 1829 the black activist David Walker attacked colonization and called for black revolution in his Appeal to the Colored Citizens of the World. In January 1831 William Lloyd Garrison began publishing The Liberator, attacking colonization and signaling the beginning of a new abolitionist movement, which demanded immediate steps by Americans to end slavery. That summer, in Southampton County, Virginia the slave Nat Turner led the bloodiest slave rebellion in US history, leaving at least fifty-five whites and at least two hundred blacks dead.
Marshall watched these events with horror but never questioned the propriety of slavery. After the Turner Rebellion, he never suggested that Virginia should take gradual steps to end slavery or ameliorate bondage by giving slaves some legal protections, such as recognition of their marriages. Rather, he petitioned the Virginia legislature for funds to support colonization, because of the “urgent expedience of getting rid in some way, of the free coloured population of the Union.” Marshall declared that free blacks in Virginia were worthless, ignorant, and lazy and that in Richmond half the free blacks were “criminals.” Marshall suggested that the presence of free blacks led to the Turner Rebellion, “the awful scenes in Southampton,” a claim consistent with his hostility to free blacks, but completely inconsistent with the cause of the Turner Rebellion or what people in Virginia knew of the participants.41J[ohn] Marshall, Chairman, “Memorial: To the General Assembly of Virginia,” December 13, 1831, 12 Papers of Marshall 127, 128, 130. There were very few free blacks in Southampton County, and there was no evidence that any participated in the Turner Rebellion.
Using the same term as his cousin Jefferson, Marshall argued free blacks were “pests” who should be removed from the state.42Id. On Jefferson and free blacks, see Finkelman, Slavery and the Founders 270. Marshall told the Marquis de Lafayette that African colonization was the “only secure asylum” that would be “beneficial for them and safe for us.”43Marshall to the Marquis de Lafayette, May 2, 1827, 11 Papers of Marshall 11–12. Marshall’s most aggressive racism and hostility to free blacks never appeared on the pages of U.S. Reports or in a book like Jefferson’s Notes on the State of Virginia, but these views influenced his jurisprudence in profound and tragic ways.
The Marshall Court heard about fifty cases involving slavery. This number excludes cases where slavery was mentioned but not important to the case, such as Fairfax’s Devisee v. Hunter’s Lessee and cases like Gibbons v. Ogden and Cohens v. Virginia, where the importance of slavery was stressed in oral arguments or in the opinions of the court, even though the case had nothing to do with slavery.
On the bench Marshall always supported slavery, even when statutes and precedent were on the side of freedom. He also adjusted his jurisprudence when slavery cases were before him. For example, in embargo cases Marshall was famous for his flexible approach to admiralty, and declined to apply “technical niceties” of common law procedure to maritime cases. But in cases involving the illegal African slave trade, Marshall rigidly applied technical niceties, protecting slave traders from suffering for their illegal and immoral commerce.44Finkelman, Supreme Injustice, Ch. 3. Similarly, Marshall used natural law arguments to defend property rights, to protect the inviolability of contracts, and to condemn bankruptcy laws.45For extensive discussion of his use of natural law, see Johnson, Chief Justiceship of Marshall 95, and White, Marshall Court and Cultural Change 674. But, in The Antelope, Marshall emphatically rejected the legitimacy of using natural law to liberate Africans illegal brought to the United States in violation of American law.
This jurisprudence reflected Marshall’s investment in slaves that was probably unmatched by any other member of the Supreme Court. It dovetailed with his lifetime commitment to slavery and his virulent hostility to the very presence of free blacks in the United States.
Read Part II here.
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Paul Finkelman is President and Professor of History at Gratz College, as well as the President William McKinley Emeritus Professor of Law at Albany Law School. He received his M.A. and Ph.D from the University of Chicago in 1972 and 1976, respectively.
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Credit to Mark Skrobola for the featured photo.