CHIEF JUSTICE JOHN MARSHALL'S DARK SIDE

Peter Radan (10 February 2019)

John Marshall is rightly regarded as the most important of all America's Supreme Court judges. Having previously fought during the American Revolution, been a member of the House of Representatives, and served as America's fourth Secretary of State, in 1801 Marshall was appointed as the fourth, and longest serving, Chief Justice of the Supreme Court, an office he held until his death in 1835.

Marshall's opinions largely shaped the nature of American federalism, the most famous and far-reaching being those handed down in Marbury v Madison[1] and McCulloch v Maryland.[2] The former, widely regarded as the most important decision in American constitutional law, entrenched the Supreme Court's power of judicial review, pursuant to which the Supreme Court was the institution that ruled on the constitutionality of federal and state legislation. The latter, in interpreting the American Constitution's "Necessary and Proper" clause, effectively granted Congress a broad implied legislative power to implement the Constitution's express legislative powers, thereby significantly diminishing the legislative competence of America's states.

Chief Justice John Marshall

The significance of Marshall's opinions in these cases has been universally recognised, and usually applauded, by his many biographers. However, these biographers have invariably neglected to detail and critique a dark side of Marshall's life, namely his attitude towards both free and enslaved African-Americans. However, this void has now been filled in two recent books - Paul Finkelman's Supreme Injustice[3] and, to a lesser extent, Joel Richard Paul's Without Precedent.[4]

Earlier writings on Marshall merely noted that he was a wealthy slaveowner, but emphasised his public statements condemning slavery as an evil. However, Finkelman's and Paul's books shine light on his actions, rather than his expressed sentiments, with respect to free and enslaved African-Americans. Marshall's actions here can be viewed from two aspects, namely, his ownership of, and trade in, slaves, and his membership and work on behalf of The Society for the Colonization of Free People of Color of America, more commonly known as The American Colonization Society (ACS).

Ownership and Trade in Slaves

In devastating detail, based upon Marshall's own records, Finkelman uncovers the significant extent of Marshall's ownership and trading of slaves that were indispensable for the operation of his vast plantations. On Marshall's ownership of slaves, Finkelman writes:

"The received wisdom is that Marshall was never involved in the business of slavery or earning money from human bondage. ... [However,] Marshall actually owned hundreds of slaves during his life. He also owned a number of plantations around the state [of Virginia] and clearly profited from them. In 1830, five years before his death, he owned about 150 slaves. By this time he had given substantial numbers of slaves to his sons, and perhaps to other relatives. Unlike his distant cousin Thomas Jefferson, Marshall did not inherit these slaves; rather he bought them throughout his life".[5]

In relation to Marshall's trading in slaves, Finkelman writes:

"It is simply wrong to claim ... that 'it is doubtful that he [Marshall] traded in slaves'. His own record books and letters show that he did trade in slaves. In the 1780s and 1790s he regularly bought slaves and in the 1830s he auctioned off slaves to pay [his son's] debts. ... The Great Chief Justice was constantly in the business of buying, giving away, and sometimes selling slaves".[6]

In relation to Marshall's treatment of slaves, both Finkelman and Paul acknowledge that there is no evidence that he whipped them. Paul suggests that, even though "Marshall was not free of racial prejudice and ... did enjoy the comforts that his household slaves provided him, ... it appears that Marshall treated his slaves humanely".[7] Finkelman says much the same, but notes that the evidence for this comes from Marshall's interaction with slaves in urban Richmond where he spent most of his time. Whether similar treatment was handed out to slaves on his vast countryside plantations, managed by his sons and relatives, is unknown.[8]

The American Colonization Society

The ACS was established in 1816 with the purpose of promoting and supporting the resettlement of free African-Americans to Africa - principally to Liberia. A measure of the ACS's "success" is the fact that, by 1850, it had relocated to Liberia approximately 6,800 free African-Americans, at a rate of 200 per annum, while at the same time, America's free black population had grown by approximately 90,000 per year.[9]

Marshall was a life time member of the ACS and founded its Virginia branch in 1827 for which he served as its first president until his death in 1835. Apart from Marshall, the ACS membership included other prominent members of America's political and legal elites, such as:

· Bushrod Washington, an Associate Justice of the Supreme Court and the ACS's first president;

· presidents James Madison, James Monroe, and Andrew Jackson;

· Henry Clay, arguably antebellum America's most influential legislator who was the principal architect of Congressional legislation that structured both the Missouri Compromise of 1820 and the 1850 Compromise; and

· Roger Taney, Marshall's successor as Chief Justice and author of the Supreme Court's opinion in Dred Scott v Sandford,[10] in which he ruled that African-Americans, be they free or enslaved, could not be American citizens.

Although all of these men recognised the evil that was slavery, apart from Taney, all were lifelong slaveholders.

Professor Paul Finkelman

In relation to Marshall's involvement with the ACS, Finkelman (pictured left) writes:

"Marshall's leadership in the ACS was not inspired by any personal discomfort with slavery. Rather, it stemmed from his fear of slave rebellions and his hostility to free blacks. He argued that the entire nation 'could be strengthened' by 'removal of our colored population'. He believed that the 'danger' from free blacks 'can scarcely be estimated'. ... [Given that the ACS's] goal was to remove American free blacks to Africa, not to end slavery ... Marshall never suggested that Virginia should take gradual steps to end slavery or even pass new laws to ameliorate bondage by giving slaves some protections. ... Rather, as the state leader of the ACS, he petitioned the Virginia legislature for funds to send the state's free blacks to Liberia because of the 'urgent expedience of getting rid in some way, of the free colored 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 argued free blacks were 'pests' who should be removed from the state".[11]

The trumpian tenor of Marshall's language and attitude towards free African-Americans is damning evidence in support of Andrew Delbanco's observation that "the colonization movement had always been polluted - in some cases animated - by the idea that blacks were inferior creatures incapable of joining civilized society'.[12] Unsurprisingly, America's African-Americans overwhelmingly opposed the objectives of the ACS.

Conclusion

Paul's final assessment of Marshall is that he "was guilty of hypocrisy - fighting for liberty in the Revolutionary War while denying it to others".[13] This hypocrisy was based upon the stark contrast between his public statements condemning slavery and his actions. As Finkelman notes, Marshall's actions demonstrated that, given that "slaves were a constant factor in his personal life, his economic success, and his children's future," he "was personally fully invested in slavery".[14]

As to what explains this hypocrisy, Paul writes as follows:

Professor Joel Richard Paul

"Virginians of Marshall's generation saw no contradiction in their fierce advocacy of equality and their dependence on slavery. Slavery made it possible to regard all white males as equal regardless of their social status. Tradesmen saw themselves as the social equals of wealthy plantation owners because they were both white. Unlike Europe, where class identity divided rich and poor and posed a constant threat to social order, in eighteenth-century Virginia, the underclass was all black and mostly enslaved".[15]

Paul's statement also explains why poor, non-slaveholding whites readily enlisted in the ranks of Confederate forces during the American Civil War.

It also explains, to some degree at least, what happened on 8 November 2016.

Footnotes

[1] 5 US 137 (1803).

[2] 17 US 316 (1819).

[3] Paul Finkelman, Supreme Injustice: Slavery in the Nation's Highest Court, Harvard University Press, 2018. Finkelman discusses this book at <https://www.c-span.org/video/?439633-1/supreme-court-justices-pre-civil-war-slavery>.

[4] Joel Richard Paul, Without Precedent: Chief Justice John Marshall and His Times, Riverhead Books, 2018. Paul discusses this book at <https://vimeo.com/259749929>.

[5] Finkelman, note 3 above, 31.

[6] Ibid, 47.

[7] Paul, note 4 above, 47.

[8] Finkelman, note 3 above, 47-48.

[9] R J M Blackett, The Captive’s Quest for Freedom; Fugitive Slaves, the 1850 Fugitive Slave Law, and the Politics of Slavery, Cambridge University Press, 2018, 97.

[10] 60 US 393 (1857).

[11] Finkelman, note 3 above, 50-51.

[12] Andrew Delbanco, The War Before the War: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War, Penguin Press, New York, 2018, 229.

[13] Paul, note 4 above, 53.

[14] Finkelman, note 3 above, 48.

[15] Paul, note 4 above, 46.