Paul Finkelman1President and Professor of History, Gratz College. B.A., Syracuse, 1971; M.A. and Ph.D., The 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 Chief Justice 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. I thank Harvard University Press for allowing me to reprint material in this essay that comes from my book, Supreme Injustice: Slavery in the Nation’s Highest Court (Harvard 2018).
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This is the second Essay in a two-part series exploring Chief Justice John Marshall’s private and public relationship to slavery. You can read Part I here.
In Part I of this series, I explored Chief Justice John Marshall’s personal and political commitment to slavery, as a lifelong buyer and seller of human beings, and his deep hostility to the presence of free blacks in America. Here I examine Marshall’s jurisprudence involving freedom suits and, to a lesser extent, his decisions involving the African slave trade. Marshall’s analysis and jurisprudence in slave cases was often inconsistent from his rulings in other areas of the law. For example, in cases involving contracts or bankruptcy, he strongly advocated the application of natural law to reach outcomes that favored creditors. But when confronted with the African slave trade—which Congress had declared to be piracy—he concluded that natural law had no place in American jurisprudence.
However, in freedom suits and in slave trade cases, the results of Marshall’s jurisprudence were consistent. He always supported slaveowners when blacks claimed to be free. Similarly, he consistently failed to enforce the federal prohibitions on American participation in the African slave trade or, after 1808, the absolute prohibition on bringing new slaves into the United States.
I. The Court, Jurisdiction, and Slavery in the Marshall Era
Most day-to-day legal issues involving slavery—contracts for the sale of slaves, bequests of slaves, criminal prosecutions of slaves or of free people who harmed them—were heard in state courts. Federal jurisdiction was limited to constitutional issues, treaties, admiralty law, diversity suits, and the federal laws regulating the African slave trade or the return of fugitive slaves, as well as cases from the District of Columbia or the federal territories, where every trial or lawsuit was a “federal case” which could be appealed to the U.S. Supreme Court. Through these routes the Marshall Court heard three kinds of slave cases.
The first involved mundane cases over such matters as contracts, settlements of estates and disputed wills, sales of slaves, and other private law matters. These cases dealt with the day-to-day business of slavery and reveal little about how Chief Justice Marshall viewed slavery, but they remind us that slavery was often before the federal courts. In these cases slaves were another form of property subject to litigation. This reflected Marshall’s own life as a buyer, seller, and owner of slaves.
The Court also heard cases involving illegal participation in the African slave trade. Federal laws of 1794, 1800, and 1803 prohibited Americans from any participation or investment in the African trade. An 1807 law prohibited the importation of any African slaves into the United States after January 1, 1808. Later acts increased enforcement and raised penalties. Statutes and the facts were sometimes ambiguous and open to conflicting interpretations. How Marshall applied these laws and read the factual record determined if slave traders lost their ships and their investments in the African trade or profited from their commerce in human flesh. Under an 1819 act the Court also determined whether hapless Africans caught up in the slave trade would be returned to the continent of their birth or spend the rest of their lives in bondage on southern plantations. Marshall invariably sided with slave traders, but in other cases, with other justices speaking for the Court, slave traders fared less well, and some Africans regained their liberty. Because of space limitation in this online venue, I will not discuss these cases, but I direct readers to chapter three of Supreme Injustice.
In this essay I focus on the third category—cases involving freedom claims of slaves. These cases did not raise large political issues, but mattered a great deal to the individuals involved, as they determined if someone would be a slave for life or live as a free person. They were at the confluence of freedom and bondage. Often the cases were not clear-cut, and the justices had various options: facts read one way, a statute interpreted another way, or a different application of a procedural rule would determine whether a slave became free or whether a master kept a valuable piece of property. Illustrative of the complexities of these cases was Marshall’s admission in one case that the statute at issue was “certainly ambiguous, and the one construction or the other may be admitted, without great violence to the words which are employed.” Consistent with his lifelong personal and political support for slavery, Marshall interpreted the “ambiguous” act to deny liberty to the black plaintiff.
II. Black Freedom and the Marshall Court
Most American slaves were doomed to lifetime bondage. For some, however, there were legal routes to freedom. In rare instances, state legislatures manumitted a slave for some worthy act, compensating the owner for this “taking.” Some masters manumitted their slaves during their lives or in their wills.2Famously, in 1817, Edward Coles, a neighbor of Thomas Jefferson and President James Madison’s private secretary, took his seventeen inherited slaves to Illinois where he freed them. George Washington freed all his slaves in his will. See Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson 263–69 (Routledge 2016).
Slaves could also gain their freedom if their masters voluntarily took them to non-slave states or foreign countries where slavery was illegal. During Chief Justice Marshall’s lifetime, courts in Louisiana, Mississippi, Kentucky, and Missouri emancipated slaves who had traveled through, sojourned, or lived in the territories and state north of the Ohio River, where the Northwest Ordinance and later state constitutions prohibited slavery.3These cases are discussed in chapter 7 of Paul Finkelman, An Imperfect Union: Slavery, Federalism and Comity (University of North Carolina 1981). Maryland and Virginia strictly regulated the importation of new slaves, requiring migrants bringing slaves with them to file certificates with the designated local officials, proving they had taken the oath of citizenship, or intended to become citizens of the state. Failure to comply would free the slave.
Slaves could also become free if they had a maternal ancestor who was white, Indian, or a free black. These cases were difficult to win, but not impossible. For example, a year after Marshall became chief justice, the North Carolina Supreme Court freed a slave because he appeared to be of mixed ancestry and his owner could not prove he was descended from a slave mother. Similarly, in 1806 Virginia’s highest court upheld the liberation of an enslaved family on grounds of appearance and the reputation that their maternal ancestor was a free Indian woman and not a black slave.
Except for two cases involving the Northwest Ordinance, the Marshall Court’s freedom cases came from the District of Columbia. The District’s laws were oddly complicated. The District was created by cessions of land from Virginia and Maryland. Virginia ceded what is today the City of Alexandria, which was called Alexandria County, until its retrocession to Virginia in 1846. Maryland gave the nation Washington County, which constitutes present-day Washington, D.C. Congress had full constitutional power to enact all laws for the District but left many state laws in place; during Marshall’s tenure Alexandria County was generally governed by Virginia law, and Washington County was generally governed by Maryland law.
Marshall wrote the opinion in seven of the Court’s fourteen cases involving black freedom, and in each case the slave plaintiffs lost. Six of these cases involved the application of either Virginia or Maryland law to slaves living in the District. In these cases, Marshall often ignored Maryland or Virginia law or precedent to rule against black plaintiffs. He never rigorously enforced statutes if doing so would have led to black freedom. His very first case on this issue illustrates this.
In Scott v. Negro London (1806) Marshall reversed a jury verdict in favor of black freedom. London initially won his freedom under a Virginia law requiring anyone bringing a slave into Virginia—and by extension Alexandria County in the District—to take an oath of citizenship and file the relevant certificate with the clerk of the court. Here a jury of twelve white men, some of whom were probably slave owners, concluded that London was free because his owner sent him into Alexandria before moving there and kept there for more than a year without taking the requisite oath or even indicating his intention to move to Alexandria. In finding London to be free because he was illegally imported into Washington, the trial court rigorously adhered to Virginia law.
This result was consistent with other state court decisions strictly applying statutes regulating slavery and at the same time liberally construing the law in favor of liberty. For example, in 1797, the Pennsylvania Supreme Court freed slaves because of the failure of a slave owner to comply with the technical requirement of keeping a slave in the state. A decade after London’s case, Mississippi’s highest court ruled that the Northwest Ordinance—a federal law—required that Mississippi free a slave who had been taken to Indiana.
Marshall might easily have upheld London’s freedom with a similar analysis. Upholding the lower court would not have threatened slavery. Rather, it would have been consistent with Virginia’s own statutes and other slave state jurisprudence. But Marshall chose to ignore the law of the slave states in this case.
Marshall disingenuously claimed his interpretation was consistent with the law’s “spirit.” However, the clear spirit of this law was to discourage the importation of new slaves into Virginia, including Alexandria County. Marshall violated that spirit. This case took place well before sectional tensions over slavery were on the political horizon, so the outcome could not have been dictated by any political concerns Marshall had about placating the South. Furthermore, it would be hard to argue that strictly applying Virginia law could possibly threaten the South. A different decision would simply have allowed one man to live his life in freedom and dignity while upholding Virginia law.
Just a few years before this, Marshall had strictly construed the Constitution to overturn a part of the Judiciary Act of 1789 in Marbury v. Madison. A year after London’s case Marshall would require a strict and narrow interpretation of the law of treason in Ex parte Bollman and in Aaron Burr’s treason trial. But here Marshall found great room for flexibility applying the “spirit” of the law, rather than the actual language and requirements of the statutes, to deny London his freedom. As an aggressive purchaser (and seller) of slaves throughout his life, Marshall may well have been sympathetic to someone who brought a slave to the District without bothering to follow local law. Marshall essentially held that ignorance of the law, or willful refusal to follow it, was a valid defense for a white man holding a black man in bondage. The “spirit” of the law that Marshall adopted was an interpretation that held someone in bondage who was legally entitled to freedom
In Scott v. Negro Ben, Marshall continued his anti-freedom jurisprudence. Ben had been brought to Washington County, which was governed by Maryland law. He sued for freedom under Maryland’s law requiring migrants to register their slaves with “the naval officer, or collector of the tax,” which Ben’s owner failed to do. Thus, the jury declared Ben to be free.
Marshall reversed the jury verdict, asserting that “it would be a singular and very extraordinary provision that a naval officer, or the collector of the tax, should be made the sole judge of the right of one individual to liberty, and of another to property.” This analysis was disingenuous if not just dishonest. The statute tasked these officials with a purely ministerial assignment of overseeing the registration of the slave and when the importer complied with the requirements of the law. The legislature had given this purely administrative task to appropriate public officials. A court would still determine the case on the basis of the evidence. The defendant was still free to dispute these facts, as Scott had unsuccessfully done at trial.
Once again, Marshall refused to interpret a law to emancipate a slave, despite a lower court ruling that Ben was free. Strikingly Marshall admitted that “[t]he act, in its expression, is certainly ambiguous, and the one construction or the other may be admitted, without great violence to the words which are employed.” Thus, he might easily have given the act a construction that would have led to freedom, upholding the lower court and resolving the ambiguity in favor of liberty. Instead, Marshall resolved the ambiguity of the law in favor of slavery. The contrast with Mississippi’s highest court is striking. Shortly after Ben’s case, the Mississippi court asserted that “[s]lavery is condemned by reason and the laws of nature. It exists and can only exist, through municipal regulations, and in matters of doubt, is it not an unquestioned rule, that courts must lean ‘in favorem vita et libertatis.’” Marshall took the U.S. Supreme Court in the opposite direction.
Two years later, Marshall’s hostility to black freedom became unambiguously clear in Hezekiah Wood v. John Davis and Others. A Maryland court had determined that John Davis’s mother, Susan Davis, had never legally been a slave. Thus, John Davis and his siblings argued that they were born free and they had never been slaves. This was consistent with the law of every slave state. Since the 1660s Virginia law had held that the children of free black women were not slaves. Because their mother was never a slave, Davis and his siblings won their case in the circuit court, where Justice Gabriel Duvall, who had been chief justice of Maryland, noted that in similar cases in Maryland the rule was always the same: if the mother was proven to be free from birth then the children “were only bound to prove their descent.”
On appeal Wood argued that he had purchased the Davis children before their mother proved her freedom and thus their claim to freedom was not governed by Susan Davis’s successful freedom suit. Wood’s lawyer, Francis Scott Key, argued that Wood “was not a party, nor privy to any party, to the suit of Susan Davis” for her freedom. This argument should have been a nonstarter for Marshall, since if Susan Davis was always free and had never been a slave, then her children were not slaves when Wood bought them. Under this theory, Wood would have had a valid suit against the person who sold Davis to him. During the oral argument, Justice Duvall “stated in open court that when he had been in practice in Maryland he had filed petitions to establish freedom” for a number of slaves, and that after their freedom had been proven, “the descendants of the petitioners had only to cite the judgment and prove their descent.”4John Noonan, The Antelope: The Ordeal of the Recaptured Africans in the Administration of James Monroe and John Quincy Adams 108 (University of California 1977).
Marshall ignored Duvall’s knowledge of Maryland practice and precedent, concluding that the Davis children were not free, even though he knew their mother had never been a slave. This result was completely at odds with the universally accepted American rule that the children of a free woman were always born free. Marshall, obsessed with property rights, and personally hostile to the idea of free blacks, rejected the settled law of every slave jurisdiction in the country to deny freedom to a handful of African Americans.
Marshall asserted that the judgment giving Susan Davis her freedom “was not conclusive evidence in the present case” because there was “no privity” between Wood and the man who had claimed to own Susan Davis. This was a non sequitur, because the case had nothing to do with Susan’s owner. If Susan had never been a slave, then under the law of every state in the nation, the children were also free, no matter how they ended up in the hands of others who illegally held them as slaves. The District of Columbia court correctly applied Maryland law, accepting the finding that Susan was free and applied that result to her children. Marshall might have concluded that the D.C. courts, when applying Maryland law in the District, were obliged—under a concept akin to full faith and credit—to accept the rulings of the Maryland courts. Alternatively, Marshall might have held that, because Susan Davis’s freedom had been confirmed by another court, the burden of proof had shifted to Wood, who had to prove that John Davis and his siblings were slaves.
Marshall ought to have ruled that once Susan Davis had established that she was free from birth there was no legal theory under which her children could be enslaved. Duvall, an expert in Maryland law, asserted this at trial and during the oral arguments before the Supreme Court. But Marshall ignored Duvall. Here Marshall divorced himself from the law of slavery, and instead introduced an irrelevant contract theory to a case that should have turned on the free birth of the mother. Marshall may have laid the “foundations of power” for the Court and the national government, as one history of his court asserts,5George 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). but here he abused his power to deny liberty to a handful of African Americans who were considered free under the laws of every state in the nation.
Marshall reiterated his hostility to black freedom a year later, in Mima Queen and Child v. Hepburn. Mima Queen claimed her freedom on the basis of her ancestry. Her only proof was the testimony of numerous neighbors whose statements were clearly a form of hearsay. At the trial she tried to present affidavits proving the freedom of her great-grandmother, Mary Queen. Francis Scott Key, this time representing the slaves, argued that if this kind of evidence were excluded in a civil case, especially a freedom suit, it would “be impossible to prove any antient fact.” The lower court in the District of Columbia rejected this testimony, while allowing the white man who claimed her to present affidavits that Mima Queen’s mother was in fact a slave—which of course was equally hearsay evidence.67 Papers of Marshall (University of North Carolina 1993), 385–86 n 2. Furthermore, the lower court also struck a juror who expressed some antislavery sympathies. Marshall sustained both the rejection of the evidence in favor of the slaves and striking a juror who opposed slavery, even though jurors who supported slavery were allowed to serve. Marshall’s biases were clear. Because opposition to slavery was sometimes based on religion—Quakers, Methodists, and some Baptists opposed slavery on religious grounds—Marshall was in effect establishing a religious test for federal jurors in violation of the Constitution’s absolute prohibition on religious tests.
On the hearsay issue, Marshall rejected Maryland practice, even though the case was decided under Maryland law. He also ignored legal understandings that hearsay evidence might be appropriate in civil cases and was often used to determine boundaries in real estate. Key’s co-counsel argued: “Such evidence as this is always admitted in the Courts of Maryland, under whose laws this case was tried, and its use had been sanctioned by the authority of the highest court of that state. . . . it is admitted not only in cases of prescription, custom and pedigree, but in all cases of the like nature.”
But, weirdly for such a brilliant lawyer, who risked his life in the struggle for American liberty, Marshall could not “perceive any legal distinction between” a claim of freedom and “any other right” and thus he refused to allow the court even to hear the voluminous evidence in Mima Queen’s favor. Reflecting his obsession with property, his persistent acquisition of slaves, and his hostility to the presence of free blacks in his society, Marshall concluded: “If the circumstance that the eye witnesses of any fact be dead should justify the introduction of testimony to establish that fact from hearsay, no man could feel safe in any property, a claim to which might be supported by proof so easily obtained.” This statement ignored the use of hearsay in other property matters and civil cases, such as where land boundaries might lie. More importantly, Marshall ignored the context of the case: whether people were condemned to lifetime bondage or allowed to live in freedom.
Marshall’s opinion was at odds with the law in Maryland, Virginia, and other slave states, where judges often recognized the distinction between freedom suits and other kinds of cases. Only a few years before, in Hudgins v. Wrights, the Virginia Court of Appeals had upheld the freedom of an enslaved family based in part on hearsay evidence. George Wythe, Marshall’s former law professor, declared the slaves free in the trial court and it was upheld by one of the nation’s leading jurists, St. George Tucker, the author of the first American edition of Blackstone’s Commentaries. Marshall could easily have found an exception to hearsay rules in freedom suits, because they were special kinds of cases.
Justice Gabriel Duvall, who had previously served as chief justice of Maryland, wrote the only dissent of his Supreme Court career,7Haskins & Johnson, Foundations of Power: John Marshall, 1801–1815, 392 . This seems to be the only time the word slave appears in this volume. arguing that the trial court should have applied Maryland law, which allowed hearsay in freedom suits involving a long-dead ancestor. Marshall disrespectfully ignored Duvall’s superior knowledge of Maryland law. Duvall, who owned many slaves, was hardly a radical opponent of slavery. But he accepted the idea that courts might lean toward freedom when appropriate. Duvall noted that in Maryland freedom suits “hearsay evidence was admitted upon the same principle upon which it is admitted to prove a custom, pedigree, and the boundaries of land—because from the antiquity of the transactions to which these subject may have reference, it is impossible to produce living testimony.” He noted that “the reason for admitting hearsay evidence upon a question of freedom is much stronger than in cases of pedigree or in controversies relative to the boundaries of land. It will be universally admitted that the right to freedom is more important than the right of property.” Duvall ended by offering a dose of reality, as well as fundamental justice, to counter Marshall’s refusal to allow a group of slaves to prove their freedom:
And people of color, from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection. A decision that hearsay evidence in such cases shall not be admitted cuts up by the roots all claims of the kind and puts a final end to them unless the claim should arise from a fact of recent date, and such a case will seldom, perhaps never, occur.8Haskins & Johnson, Foundations of Power, at 298–99.
But Marshall would have none of this. An active purchaser of slaves, who owned hundreds of human beings over his lifetime—Marshall fully understood the “uncontrolled authority of a master” and the importance of property. Marshall claimed he feared that allowing hearsay in freedom suits—as Maryland law allowed—would threaten property everywhere, although that conclusion was patently absurd. Marshall might have easily limited the use of this evidence to freedom suits, as Maryland law did.
Had Marshall allowed the case to move forward, Mima Queen would not necessarily have become free; she would only have been given an opportunity to prove her freedom, perhaps with a jury that did not include only supporters of slavery. Mima Queen might have lost before a Washington jury, but she would have had her day in court with the only evidence available to her. Marshall prevented this from happening.
Significantly, in this case Marshall departed from a jurisprudential rule he had followed a few years before. In Telfair v. Stead’s Executors, Marshall used Georgia precedent to decide a complicated case from that state involving land, some slaves, and pre–Revolutionary War debts. Marshall based his decision on the Georgia rules because he noted the Court had “received information as to the construction given by the courts of Georgia.” Thus, Marshall deferred to state law in a property dispute. But in a case involving human freedom, Marshall rejected the relevant state law. Property and the settlement of debts mattered a great deal to Marshall; freedom was less important. In subsequent cases Marshall denied freedom claims.
In 1827 Justice William Johnson spoke for the Court rejecting a freedom claim. The Washington trial court had ruled that the slave Matilda and her children were free because there was no evidence that the owner had taken an oath indicating his intention to reside in Washington, as required by Virginia law. The move had happened thirty years before, but there was no record that the defendant slave owner had ever taken the proper oath. Although he had not filed the proper paperwork, the slave owner argued that the Court should presume he had taken the oath and let him keep Matilda and her children. The trial court rejected this presumption and a jury of white men in Washington declared the slaves to be free.
This case was almost a mirror image of Mima Queen’s case. Here the slave owner wanted to use something even weaker than hearsay evidence—a mere presumption that the court should favor him. If the Marshall Court had been consistent, it would have upheld Matilda’s freedom, perhaps citing Mima Queen to support this result. But this did not happen. Instead, the Court reversed, asserting that there was a Virginia case which held that, in situations like this, Courts should presume the oath was taken.
But here again, the Marshall Court was inconsistent. In both Wood v. Davis and Mima Queen, Marshall refused to apply Maryland precedent, which would have freed Davis and his siblings and allowed Mima Queen to present evidence of her freedom. In this case, however, the Court asserted that it was “a relief to us to find that there has been an express adjudication on” the issue, and thus, by following this Virginia precedent, the Court could find for the slave owner. Once again the slaves in the District of Columbia saw freedom snatched from their hands by a decision of the Marshall Court, and Marshall and his colleagues felt “relief” that they did not have to free someone held as slave.
In 1829, in Le Grand v. Darnall, the Marshall Court upheld the freedom of a black man under Maryland law. Significantly, the opinion was not by Marshall, but by Justice Gabriel Duvall. Here Marshall either acquiesced to Duvall’s expertise in Maryland law or lacked the votes to decide the case the other way.
In LaGrange v. Chouteau, in 1830, the Chief Justice refused to even consider the meaning of the Northwest Ordinance, which prohibited slavery north of the Ohio River. In 1817 Pierre Menard had taken his slave LaGrange from Missouri to the Illinois Territory, where slavery was illegal under the Northwest Ordinance. Menard later sold LaGrange to Pierre Chouteau. LaGrange claimed his freedom under the Northwest Ordinance. While the Missouri courts often freed slaves who had lived in Illinois, in 1828 the Missouri Supreme Court rejected LaGrange’s claim, explaining that the mere presence of a slave in Illinois for a few days did not constitute an attempt “to defeat the ordinance.” The Missouri court spelled out its interpretation of the Ordinance: “This court has decided that it will not be tied down to the particular exceptions contained in the ordinance, but will look at its spirit and object, and a case cannot be well conceived that could fall more fully without the spirit of its provisions.” Like Marshall in the case of Negro London, the Missouri Court appealed to the “spirit” of a law when the language of the statute dictated a slave should be free.
Before the U.S. Supreme Court LaGrange argued that the Missouri Supreme Court incorrectly interpreted the Northwest Ordinance and that he became free the moment his master voluntarily took him into the territory. This was consistent with Anglo-American law dating from Somerset v. Stewart in 1772. Here was an opportunity for Marshall, who strongly supported a powerful central government, to implement the Supremacy Clause of the Constitution and congressional power by applying the Northwest Ordinance to LaGrange’s case. But, in what was to be his last opinion on black freedom, Marshall concluded that the Court had no jurisdiction in the case because the pleadings did “not show that any act of congress was drawn into question.” Marshall implied that LaGrange’s trial attorney, in asserting that Illinois did not allow slavery, failed to specifically state that this was under the Northwest Ordinance.
But none of this should have mattered because LaGrange was not appealing the trial verdict but was asking for a review of the Missouri Supreme Court’s interpretation of the Northwest Ordinance, which was a federal law. The Missouri Supreme Court decision shows that no one involved in this case doubted that it turned on the interpretation of a federal law. Marshall could claim he lacked jurisdiction only by ignoring the opinion of the Missouri court.9This case was an appeal from the state supreme court (under Section 25 of the Judiciary Act of 1789) based entirely on meaning of a federal law—the Northwest Ordinance—and was not filed as a diversity suit. Thus, the question of black citizenship did not arise, as it had in Darnall’s case and would arise again in Dred Scott v. Sandford (1857).
Clearly Marshall did not want to even consider the implications of the Missouri Supreme Court’s narrow reading of the Northwest Ordinance. In a short, almost impatient opinion, Marshall concluded the court had no jurisdiction because there was no federal law at issue. It is hard to imagine why Marshall thought a state interpretation of the Northwest Ordinance as it applied to a federal territory did not involve an act of Congress.
A year later, Menard v. Aspasia once again brought the Northwest Ordinance before the Supreme Court. Aspasia was born in the Illinois territory after 1787. He argued that not one could be born a slave in the Northwest Territory, where the Ordinance provided there could be “neither slavery nor involuntary servitude.” The Missouri Supreme Court upheld Aspasia’s freedom. His owner, Menard, appealed to the U.S. Supreme Court.
In a long and detailed history of the Revolution, the Northwest Ordinance, and subsequent federal laws the Court upheld Apasia’s freedom. The bottom line was that after the adoption of the Ordinance all people in Illinois were born free. The Court dismissed Menard’s suit because the Ordinance did not give him any title to a slave in Illinois. This was the first time the Marshall Court had ever upheld a lower court decision giving freedom to slaves.
This was not, however, the work of Chief Justice Marshall. John McLean of Ohio wrote this historically detailed, careful, and scholarly opinion. It reflected McLean’s decisions as a state judge in Ohio. In the years after Menard, the Marshall Court heard five more cases involving black freedom. Justice Smith Thompson upheld freedom claims in two of them. The Court upheld freedom in two others, with opinions by James Wayne, a Georgia slave owner nominated to the Court by Andrew Jackson in 1835. These cases were not earth-shattering; none threatened the institution of slavery. They simply upheld manumissions by wills, voluntary manumissions, and the laws liberating slaves illegally imported into the District of Columbia. Significantly, Marshall wrote none of these opinions.
It was only in Marshall’s last years on the bench that the Court sided with slaves seeking freedom. Marshall’s biographers claim his slavery jurisprudence was necessary to preserve the Union, to preserve national harmony, and to placate the South. That analysis might arguably be true in LaGrange, where Marshall did not compel Missouri to strictly apply the Northwest Ordinance. But in all the other cases involving black freedom, such an analysis is unpersuasive. In some of those cases southern white jurors and judges had determined that slave plaintiffs deserved to be free, but Marshall overturned them to side with the master. In some cases—like those of John Davis and Mima Queen—Marshall rejected slave-state jurisprudence to prevent slaves from gaining freedom. These were not cases brought by abolitionists to attack slavery. The freedom claims from the District of Columbia, which Marshall consistently denied, did not threaten slavery or the South.
Had Marshall accepted Justice Duvall’s analysis and the spirit of his lower-court opinion in the Davis case, or his explication of Maryland law in his dissent in Mima Queen, the results would not have undermined slavery or property in the District of Columbia. Slaves who claimed freedom would still have had to find white witnesses to testify to their freedom. All-white juries would have been able to judge the veracity of the evidence. White judges (usually slave owners) would have presided over such trials. But some slaves—perhaps Mima Queen and her children, and certainly John Davis and his siblings—would have gained their liberty. These cases show that Marshall was committed to slavery and hostile to free blacks on the bench, just as he was in his personal life and in his role in the American Colonization Society.
Even when he offered freedom to his personal slave, Robin Spurlock, Marshall forced him to choose exile in Liberia or freedom in some other state far from his friends and family, because without legal help he could not have obtained permission to remain in Virginia. Marshall must have known Spurlock would not be able to accept freedom under these conditions. So, while claiming to “wish to emancipate my faithful servant Robin,” he also provided that Spurlock could choose a master from among his children.
Marshall’s offer of freedom to Robin Spurlock, with its impossible conditions, recalled his idiosyncratic jurisprudence in freedom suits—insisting on strict rules in one case, ignoring them in another, and admitting ambiguity in another—but always supporting slavery and blocking freedom.
Read Part I 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.