REVIEW ESSAY: PAUL FINKELMAN, SUPREME INJUSTICE:SLAVERYINTHENATION'S HIGHESTCOURT(CAMBRIDGE, MASS., HARVARD UNIVERSITY PRESS, 2018) - JOHN ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Review Essay:
Paul Finkelman, Supreme
Injustice: Slavery in the Nation’s
Highest Court (Cambridge, Mass.,
Harvard University Press, 2018)
CHARLES F. HOBSON
Paul Finkelman has led a long and enslaved and freed persons during the two
distinguished career as a legal historian of decades preceding the Civil War. This
slavery and race in the United States. He is collapse, signified by increasing emancipa-
truly a peripatetic scholar, having held a tions of slaves brought northward by sojourn-
dizzying number of academic appointments ing masters and re-enslavement of freed blacks
throughout this country and abroad. Most who returned to the south, was the prelude to
recently, he has alighted as president of Gratz the breakup of the federal Union in 1860.
College in Philadelphia. The present book is From this specialized study, Finkelman
an outgrowth of the Nathan I. Huggins enlarged his scope in Slavery and the
Lectures, delivered at the W.E.B. Dubois Founders, a series of connected essays
Center at Harvard University in 2009. elaborating his great theme “that slavery was
While compiling an extensive list of a central issue of the American founding.”1
publications over the past four decades, With this book, Finkelman secured his
Finkelman established his scholarly creden- reputation as a harsh critic of the founding
tials in two principal works: An Imperfect generation for its failure to confront the
Union: Slavery, Federalism, and Comity contradiction between its idealistic rhetoric
(1981) and Slavery and the Founders: Race in favor of liberty and equality and the reality
and Liberty in the Age of Jefferson (1996 that vast numbers of black persons were held
third edition, 2014). The former traced the in bondage. It was not just that the founders
breakdown in “comity” between northern and failed to translate Revolutionary idealism into
southern legal systems regarding the transit of effective action to challenge slavery but that
364 JOURNAL OF SUPREME COURT HISTORY
they actually strengthened the institution by the “stain of racism and the legacy of slavery”
providing constitutional and legal protections. make for unpleasant reading.3 Still, it is
Finkelman has deservedly drawn praise evident that he derives some grim satisfaction
for his critical assessment of the nation’s in bringing the revered founders down from
fateful unwillingness at its founding moment their exalted level to the realm of flawed
to deal effectively and honorably with the humanity.
institution of slavery. No one has done more Supreme Injustice is of a piece with the
to place this painful truth at the forefront of author’s previous work, at once enlightening
our early national history. As both a historian and argumentative, aimed at challenging
and engaged activist on behalf of racial received wisdom. The title perfectly captures
justice, he believes that a realistic under- the book’s thesis, promising readers to expect
standing of our imperfect past is essential if an unsparing judgment of the antebellum
Americans “are to do better in our own Supreme Court’s record on slavery. To be
times.” He forthrightly denies the charge of accurate, it is not the Court as an institution that
presentism, of interpreting the past through Finkelman brings to account but rather its
the distorting lens of the present. He insists “three most important justices” (at p. 1): Chief
that he judges past actors by the standards of Justice John Marshall, Associate Justice Joseph
their day, not our own, though acknowledg- Story, and Chief Justice Roger B. Taney. With
ing that statesmen like Thomas Jefferson Story and Taney, the focus is primarily on two
should be held to the highest standards of famous (or perhaps infamous) opinions: Prigg
their day. They are not to be excused for v. Pennsylvania (1842), in which Story held
merely being “better than the worst” of their that a Pennsylvania law to prevent the forcible
generation.2 He has little patience for letting removal of black persons into slavery was void
the founders off the hook by portraying them as clashing with the federal Fugitive Slave law
as tragically bound by their historical milieu, of 1793 and Dred Scott v. Sandford (1857), in
stumbling uncertainly into an unknown and which Taney in the course of denying a freedom
unknowable future. Finkelman believes that claim declared that blacks could not be citizens
an important part of the historian’s duty is to and that the federal government had no power
render moral judgments. He is not one of to regulate slavery in the territories acquired
those excessively contextualizing historians after the creation of the United States (thereby
who in seeking to understand or explain past overturning the Missouri Compromise of
actions in terms of particular exigencies of 1820).
time and place risk excusing or exonerating. Unlike Story and Taney, Marshall has
At the heart of the moral historian’s largely avoided close scrutiny of his slavery
enterprise is the assumption that past actors jurisprudence, apparently because there is too
had clear choices and the freedom to choose little to yield much substance. No case
one course of action or another. For Finkelman directly bringing in issue the legitimacy or
early national statesmen too often and with ill constitutionality of slavery came before the
intent rejected policies that could have Marshall Court. Yet it did hear a number of
ameliorated the conditions of slavery and cases arising from petitions for freedom and
pointed toward its eventual demise. Phrases from slave trade violations whose decision
like “could have,” “should have,” and “might turned on the free or slave status of black
have” (sometimes paired with “easily”) regu- persons. These constituted a small but not
larly recur in his depressing narrative of insignificant portion of the court’s docket.
politicians failing the moral test by choosing Historians and legal scholars are familiar with
“slavery” over “freedom.” Finkelman pro- two cases that come closest to revealing the
fesses to take no joy in his project, noting that Court’s views on slavery and the slave trade:
REVIEW OF SUPREME INJUSTICE 365
Mima Queen v. Hepburn (1813), a freedom Independence and the preamble to the other-
suit, and The Antelope (1825), which dealt wise proslavery Constitution, with public
with the legality of the international slave opinion north and south that condemned
trade. The latter case has received the most slavery as morally wrong and a threat to
attention, including a book-length study.4 national security, and with the legal rule that in
Finkelman has delved deeply into the early cases of doubt courts should lean toward life
U.S. Reports and gleaned additional cases and liberty. Instead of embracing a jurispru-
that he believes previous scholarship has dence more friendly to freedom, Marshall,
overlooked.5 Taking these cases and consid- Story, and Taney, quite the contrary, “contin-
ering them in conjunction with Mima and uously strengthened slavery in the American
Antelope, he finds a clear pattern of bias constitutional order” and thereby “helped”
against freedom on the part of the “great chief bring on the Civil War and “the death of some
justice.” The evidence is sufficiently incrimi- 630,000 young Americans” (at p. 1-3).
nating to join Marshall with Story and Taney This is a heavy charge for these three
as a trio of “supremely unjust” Justices jurists to bear, made in the confident belief that
(at p. 10). individuals have great capacity to shape
Finkelman has previously written on history and therefore to be assigned blame
Prigg and Story and on Dred Scott and Taney. for history’s failings. These Justices, Finkel-
The greater part of the present book is man writes, “profoundly altered the politics of
devoted to Marshall, who has not previously slavery and the course of national history.”
drawn the author’s particular notice. What Notwithstanding “constraints” on their ability
follows focuses almost entirely on the to act, they had “great flexibility” to choose a
Marshall chapters because they present jurisprudence of freedom that “would have
new information about the Chief Justice as changed the course of history” (at p. 220).
a Virginia slaveholder. Such emphasis also Finkelman seems particularly eager to consign
better fits my background as a student of Marshall to this judicial hall of shame, having
Marshall and annotator of his collected already done so with Story and Taney. In
papers. taking his first critical look at Marshall, he is
Finkelman wastes no time in stating his pumped with new information that he believes
case that Marshall, along with Story and should radically revise our estimate of the
Taney, should be held personally responsible “great chief justice.”
for the institutional failure of the Supreme
Court to exercise its authority in a way that
favored freedom over slavery in the decades
Marshall as a Slaveholder
before the Civil War. He sketches an alterna-
tive scenario in which these three Justices Thanks to Finkelman’s research, we now
could have contributed to a “political solution know that Marshall owned many more slaves
to the problem of slavery” or at least have than was previously believed to be
ameliorated the system by upholding more the case. Earlier historians and biographers
claims to freedom and vigorously protecting have been content to pass on the received
the rights of free blacks. A “different knowledge that Marshall owned a small
jurisprudence,” he says, “would have left the number of slaves at his Richmond home
nation with a legacy of liberty and justice, and on his Chickahominy farm a few miles
rather than one of slavery, racism, and outside town in Henrico County. According
oppression.” Such a jurisprudence was readily to the 1830 federal census, Marshall owned
available for adopting, consistent with the seven slaves in Richmond and sixty-two in
ideals set forth in the Declaration of Henrico. The same census for Fauquier366 JOURNAL OF SUPREME COURT HISTORY
County lists forty-odd slaves under Mar- annotating Marshall’s collected papers, nota-
shall’s overseer and at his “quarter.” Add to bly his will, I should have searched the
these (as Finkelman does) those listed under Henrico census records on microfilm, which
the names of Marshall’s five sons, Fauquier now can be quickly accessed online through
County farmers, and you have a substantial Ancestry.com.
Marshall family investment in slave property In his analysis of Marshall as a slave
—more than 250 slaves in 1830 (at p. 36-37, owner, Finkelman, like others before him,
46-47, 233 n. 9). Until Finkelman, no one had draws on an account book covering the
bothered to check the Henrico census records, years 1783 through 1795. Using the annotated
even though Marshall’s correspondence text in the Papers of John Marshall, he
mentions slaves at Chickahominy and a counts some twenty distinct purchases be-
passage in his will apportions his slaves tween 1783 and 1790. He also cites Richmond
there. The Fauquier records were overlooked city tax records as compiled by Marshall’s
as well, even though Marshall made annual editors for information on slaveholdings
summer visits there to see his sons and tend to through 1795. Marshall, he notes, was also
his own property interests. at this time “populating” his estates in Henrico
The misconception that Marshall owned and Fauquier with slaves, though he does not
relatively few slaves in the urban setting of cite any records for those counties (at p. 40).
Richmond crept into the literature seemingly From 1795, Finkelman jumps forward to
as a consequence of unexamined assump- 1827, when Marshall wrote the first of several
tions. In his monumental biography early in wills. The wills, coupled with the 1830 census
the twentieth century, Albert Beveridge records, indicate the extent of his slave-
barely touched on the subject beyond noting owning at that time. Thus armed with data
that Marshall inherited a few slaves from his from both ends of Marshall’s adult life,
father and recorded purchases in his early Finkelman conjures an image of Marshall as
account books.6 Subsequent researchers actively, constantly, and aggressively in-
showed a surprising lack of curiosity to dig volved in the business of buying and selling
deeper. Even Irwin S. Rhodes, who unearthed slaves “throughout his life” (at p. 37).
real and personal property records pertaining Sentences to this effect pop up recurrently,
to Marshall with antiquarian zeal, missed often within the space of a few paragraphs, as
counting the slaves at Chickahominy and in if repetition strengthens the argument. Usu-
Fauquier.7 More recently, Jean Smith states ally, he adds the qualifier “sometimes” or
that, since Marshall “was never involved in “occasionally” when speaking of Marshall as
large-scale agriculture, he had no significant a seller. But the only transaction of this kind he
holdings.”8 Kent Newmyer describes Mar- cites is the sale of the slaves on the estate of
shall as “a small urban slaveholder,” though John Marshall, Jr., after the son’s death in
noting that he had slaves at Chickahominy 1833. No extant documents—deeds, bills of
and was involved to some extent in plantation sale, or correspondence—show Marshall in
slavery through his sons.9 Frances Howell the act of buying after the 1790s, though
Rudko cites Rhodes’s compilation of federal surely his acquisition of slaves must have
census records for 1810, 1820, and 1830 to continued beyond this time. For Finkelman,
show that Marshall’s “slave ownership was the records unambiguously reveal Marshall as
never large,” but these count only the a lifelong trader in slaves.
Richmond numbers.10 My own book, which According to Finkelman, “the fact of
was not a full-scale biography, did not Marshall’s vast slaveholding forces a recon-
question the view that Marshall possessed sideration of his personal feelings on slavery”
“a modest number of slaves.”11 However, in (at p. 48). With revisionist ardor, he casts inREVIEW OF SUPREME INJUSTICE 367 No scholar had made a full accounting of John Marshall’s slaveholding records before Paul Finkelman, who estimates that the Chief Justice and his five sons owned more than 250 enslaved persons in 1830. At his Chickahominy farm in Henrico County he owned sixty-two. an unfavorable or unsympathetic light practi- Life of George Washington, for not mea- cally everything Marshall did or said regard- suring up to “his hero,” for failing to learn ing slavery, rarely cutting him any slack by how “a true hero of the Republic—even a giving him the benefit of the doubt. Even the slaveholder’s republic—should treat people, Chief Justice’s seemingly compassionate including slaves.” He quotes Washington as hope to liberate his manservant Robin famously refusing “to buy or sell slaves ‘as Spurlock is presented in a disparaging way. you would do cattle at a market.’” The In this and other matters, Finkelman does not paraphrase is somewhat misleading, for shy away from taking speculative leaps from Washington actually said that he was “prin- the record—and sometimes from what is not cipled against selling negros, as you would do in the record—to make sweeping assertions cattle in the market.”12 Finkelman likes the about Marshall’s supposed bad faith if not “cattle at a market” phrase so much that he mean-spiritedness. He seeks to demolish the repeats it a few pages later when he again image of Marshall as a benevolent master in chastises Marshall as a buyer and seller of the tradition of southern paternalism, one who slaves (at p. 45, 48). The passage contrasting treated his slaves kindly and recognized their Marshall with Washington is indicative of the humanity. In its place, he portrays a Marshall author’s insinuating style of argumentation. who regarded slaves as mere producers of Space precludes a full review of the wealth, as objects of commerce to be bought author’s catalog of Marshall’s moral failings and sold. He scolds Marshall, author of the as a slaveholder. Certain of his charges that go
368 JOURNAL OF SUPREME COURT HISTORY
unnoticed here should not be taken as implied Chief Justice had three adolescent sons. He
assent. At the outset and throughout, Finkelman was over seventy when his youngest son
strives to fashion a portrait of Marshall as a graduated from college. The three younger
“very wealthy man,” “a wealthy southern sons, notably John, Jr., had a distressing habit
gentleman with a significant number of slaves,” of incurring large debts. In 1827, John’s
a “wealthy lawyer and planter,” and “a wealthy pecuniary indiscretions involved the father
landowner” (at p. 33, 40, 44, 221). Even toned “in debts which require all my resources and
down from his draft describing him as from which I shall be several years in
“stunningly” or “fabulously wealthy,” his extricating myself.” The next year he was
depiction of the Chief Justice as a man of large “surprised as well as grieved” to learn the
fortune does not ring true to those who have “magnitude” of son James’s debts. He was
studied Marshall and visited the modest houses chagrined that his sons did not “feel the
and homesteads owned by him and his family. proper horrour at owing money which cannot
To be sure, Marshall lived in comfortable be paid.” In drawing his will, Marshall
circumstances but certainly not in the grand expressed a certain anxiety about being surety
style. Visitors to his Richmond home spoke of for his son-in-law Jaquelin Harvie “in
the republican simplicity of his lifestyle. From considerable sums of money which I hope
1800, he was in government service, including my estate will never be required to pay.”15
thirty-five years as Chief Justice. If instead he In overstating the degree of Marshall’s
had remained a private citizen and practiced wealth, Finkelman creates the misleading
law, he might well have become very wealthy impression that the basis of that wealth was
like his lawyer-neighbor John Wickham, whose large holdings of slaves. Marshall “owned
Richmond townhouse was truly grand. hundreds of slaves during his life,” he writes,
By all accounts, Marshall’s country place and “also a number of plantations around
on the Chickahominy did not rate the status of the state” from which “he clearly profited”
a “plantation.” True, he once lightheartedly (at p. 31). But, apart from his Henrico farm, he
referred to it as “a plantation productive only owned no other “plantations,” unless he is
of expence & vexation,” but more often simply including the lands farmed by his sons in
as his “farm.”13 Today, a historical marker Fauquier. How he “profited” from their
(“John Marshall’s Farm”) sits on the site apparently debt-encumbered estates, or even
where the farm and other buildings once stood. from his Chickahominy farm, is not made clear.
The house was evidently a small dwelling Marshall did indeed possess vast quanti-
—“our little place in the country,” as Marshall ties of land, not just in Henrico and Fauquier,
described it in 1829.14 Marshall bought the but in distant counties of what is now West
place primarily as a retreat from the bustle of Virginia. His profits from these lands did not
town life, most importantly for his invalid wife come from plantations worked by slave labor
Polly, who because of an extreme nervous but his serving as a landlord selling lots and
condition could not tolerate loud noises. Here, larger tracts, collecting rents on long-term
too, the Chief Justice could pursue farming, leases, and selling the reversionary interest in
mostly as an avocation rather than as a source these leases. Land, indeed, was the principal
of productive income. source of his income apart from his official
Whatever his true net worth might have salary as Chief Justice ($4,000, increased to
been, Marshall never saw himself as entirely $5,000 in 1819). He acquired most of his
free of financial concerns, even in his later lands as a result of the one great business
years. He had a large family to support, five venture of his life. In 1793, he contracted to
sons and a daughter, whose wellbeing was a purchase the manor lands of the Fairfax
constant preoccupation. At age sixty, the family, the former proprietors of Virginia’sREVIEW OF SUPREME INJUSTICE 369
Northern Neck. Marshall brought this deal to friends. This is a kind of cruelty that exceeds
fruition in 1806 with the final payment to the physical punishment” (at p. 37). As a buyer of
Fairfax heirs, having in the intervening years slaves, Marshall signified his acceptance of
devoted all his resources and income to this slavery’s evil consequences. In such trans-
project—including writing a five-volume actions he probably never gave a thought to
biography of George Washington that proved whether he was inflicting cruelty. If he did
disappointing in its monetary returns. think about it, perhaps he rationalized that any
Marshall’s real business was real estate, enslaved person he bought would be well
which he truly did buy and sell all his life. treated.
From a prudent economic standpoint, Mar- On Marshall’s treatment of slaves, Fin-
shall at some point would have ceased buying kelman extends a backhanded compliment
more slaves and relied on natural increase to mixed with innuendo. We cannot “actually
meet his needs and those of his sons. Even as know how these slaves were treated,” he
slaves were essential to agricultural enter- writes, acknowledging that there is “no
prise, he and other proprietors of enslaved evidence that Marshall whipped his slaves in
persons in antebellum Virginia were acutely Richmond, and such treatment coming di-
anxious about the increasing economic rectly from him seems unlikely.” “But,” he
burden of such ownership. Slave property continues, “we also have no evidence of how
yielded less profit while adding more ex- Marshall’s overseers, sons, nephews, and
pense, as he noted in a letter written in 1825: other men in his family treated the vast
“The general fact is known to be that it majority” of his slaves “in the countryside.”
requires a combination of industry skill and He makes an invidious reference to Jefferson,
economy in a proprietor of slaves to who did not personally whip his slaves but
accumulate even a moderate fortune in the left that “unpleasant business to underlings”
course of a long life. In truth, the profits of (at p. 47). The lack of a documentary record of
their labour, in the general, will barely mistreatment of slaves does not deter Finkel-
support a family and rear up the young man from supposing the worst. He wonders
slaves.” He made the additional observation what John, Jr., might have done in a drunken
that “[o]ld negroes too who have humane and violent fit, though admitting “we cannot
masters, continue for many years a burthen on know how he behaved” (at p. 47-48). Thus the
their owners.”16 Marshall here spoke from imagined sins of the son are visited upon the
direct experience, as owner of a farm father.
“productive only of expence & vexation,” In August 1832, Marshall added the
and from his sons’ difficulties in keeping out following codicil to his will:
of debt as Fauquier farmers. He surely
believed himself to be a “humane” master It is my wish to emancipate my
with a paternalistic duty to clothe, feed, and faithful servant Robin and I direct his
provide care for his slaves through life. emancipation if he chuses to conform
Finkelman does concede that “[s]ome- to the laws on that subject, requiring
times Marshall recognized the humanity of that he should leave the state or if
his slaves,” as in his will providing for the permission can be obtained for his
distribution of his slaves in a way that “kept continuing, to reside in it. In the event
families together” as near as possible. Almost of his going to Liberia I give him one
immediately, however, he reverts to his hundred dollars, if he does not go
portrait of Marshall the lifelong slave dealer thither I give him fifty-dollars.
whose transactions necessarily entailed exil- Should it be found impractible to
ing “many of his slaves” from “family and liberate him consistently with law370 JOURNAL OF SUPREME COURT HISTORY
and his own inclination, I desire that He assures us that the Chief Justice “could
he may choose his master among my easily have” emancipated his servant, but
sons, or if he prefer my daughter that how can he or anyone really know all the
he may be held in trust for her and her circumstances that entered into Robin’s
family as is the other property continuing as a slave? Even if Marshall did
bequeathed in trust for her, and that not really expect Robin to accept the offer, for
he may be always treated as a faithful Finkelman to scorn the codicil’s bequest as
meritorious servant.17 insincere or cynical, an act of bad faith, is
unduly harsh. A fairer reading would see an
According to family tradition, Robin Spur- aging Chief Justice in the very public way of a
lock was given to Marshall as a wedding gift last will and testament expressing his high
from his father in 1783. After the Chief esteem for Robin “as a rational man capable
Justice’s death in 1835, the elderly servant of deciding his own fate.” Marshall was
chose to remain in slavery in the family of comparable to other testators who did not free
Mary Marshall Harvie. their slaves but in allowing a choice of
Marshall’s hope to emancipate “one masters “came the closest to recognizing their
slave among so many,” writes Finkelman, humanity” and thereby acknowledged “a will,
was “hardly compelling evidence” of “pater- however constrained, in the slave.”18 The
nalism and humanity.” The choice presented codicil spoke to a long and intimate relation-
to Robin was “hardly attractive”: leave the ship—between master and slave, to be sure,
state with some money and abandon friends but also between two fellow humans who by
and family or be “penniless” if he somehow all accounts enjoyed each other’s company.
could gain freedom and remain in the state. In Late in 1833, John Marshall, Jr., died at
effect, the offer of freedom with these the age of thirty-five, leaving a widow and
“impossible conditions” virtually compelled three children. Fond of drink and gambling,
Robin to remain in slavery. Marshall, “the this prodigal son had caused the Chief Justice
wealthy lawyer and planter,” writes Finkel- no little anguish, dating at least from his
man, “could easily have” provided the means expulsion from Harvard in 1815. In response
and money for his “faithful servant” to live to the son’s financial “indiscretions,” the
out his years in Richmond as a free man. But father drafted a will in 1827 placing the
he took no steps to secure Robin’s freedom property intended for John in the hands of
because it was never his intention to add to trustees for the benefit of his family. This
Richmond’s free black population by liberat- provision was also in the final will of 1832,
ing him. The codicil thus “speaks volumes but the expedient did not prevent the estate,
about [Marshall’s] ‘paternalism,’ his views Mont Blanc, from being heavily encumbered
on race, and his lifelong support for slavery.” with debts at the time of John’s death.
For good measure, Finkelman berates the Marshall advised his son James Keith, one
codicil’s author for not dignifying Robin of the trustees, on the various measures to
“with a last name” (at p. 43-44, 74-75, 236 n. meet this crisis, one of which was a sale of the
33). He seldom resists an opportunity to estate’s slaves.
register his moral indignation, noting, for Finkelman uses this episode—the one
example, that “Marshall spent Independence documented instance of selling slaves—to
Day buying slaves” (at p. 37, 38). castigate Marshall, virtually accusing him of
The constraints on Marshall in devising being an ungenerous owner of the enslaved,
his estate were greater than Finkelman oblivious to their feelings. Once again, in his
supposes; the choices facing him were not telling, Marshall had an easy choice. He could
as easy as the author would have us believe. have paid off his son’s creditors by drawingREVIEW OF SUPREME INJUSTICE 371
on his own considerable assets—bank and preserve some semblance of Mont Blanc’s
turnpike stock, lands, and interest on loans— solvency and to keep his widowed daughter-
but “chose not to” and directed the sale of in-law and grandchildren on the farm. The
slaves for this purpose. The “admirable goal” sale of the estate’s assets, including the
of protecting the widow and children was thus slaves, was regarded as “absolutely proper”
accomplished “by increasing the misery of for this purpose. Contrary to Finkelman’s
the slaves who had worked for years to insinuation, the Chief Justice did draw from
support his son’s family.” The sale “would his own funds, as he had done in earlier
inevitably destroy slave families—separating attempts to bail out his impecunious son.
husbands from wives and children from According to the 1830 census, thirty-one
parents” (at p. 45). slaves lived and worked at Mont Blanc. How
Most of what we know about the sale of many were sold at the 1834 sale, how many
the Mont Blanc slaves comes from letters to were bought back, and how many families
James, who in addition to being a trustee was were separated cannot be known. The slaves
also his late brother’s executor. In April 1834, who had to leave Mont Blanc, or some of
Marshall reported that he had sent $700 “for them, perhaps were able to stay in Fauquier
the purpose of paying off the executions with on the farms of the other Marshall sons or of
my opinion that it will be advisable, unless their neighbors.
you perceive strong reasons against it, to sell Without question, Marshall participated
as far as the 700$ will go under the executions more actively and deeply in slavery than was
and buy in my name for the family. The previously suspected. Yet there is still much
negroes &c I think should be sold on credit. we do not know—and perhaps will never
Those which Elizabeth wishes to keep or know—about Marshall’s personal engage-
which you think to keep—may be purchased ment with the institution. Having opened up
in my name also.” The father goes on to say a fresh field of inquiry, Finkelman might have
that James’s concern “about suits renders this added depth and context to the story by a closer
sale absolutely proper. I do not know how examination of Marshall’s slaveholding over
other wise you can act safely, since the time. For example, he could have looked at the
appraisement I am told is too high to act upon 1810 and 1820 censuses as well as that for
it as the real value. I do not know how you can 1830; the 1790 and 1800 Virginia census
plead unless you know the actual amount of records were destroyed by fire. He could have
assetts. You must act safely so as to expose carried his investigations even further by
yourself to no loss from illegal proceedings.” looking at personal property records to cover
In the same letter, Marshall announced his the years between the censuses. Virginia taxed
willingness to secure a loan of $5,000 by a slaves aged twelve and above, so the records
mortgage on Mont Blanc, although he left that do not count those under twelve. Between
up to James, who had better knowledge of the 1787 and 1835, the number of taxed slaves in
“situation of the estate and the temper of the the Marshall’s Richmond household remained
creditors.” He also said he would soon send fairly constant, fluctuating between seven and
another $1,000. In a subsequent letter, he eleven. According to Henrico County land tax
advised James that it would “be proper to records, Marshall bought about a thousand
allow creditors to bid” at the sale of the slaves acres of land “on Chickahominy Swamp” in
and that those intended to be reserved for the 1799.20 Personal property records for that year
family should be sold with the others and show that Marshall paid taxes on nine slaves.
purchased in my name.”19 By 1807, that number had reached sixteen. In
Marshall, though at a distance, was 1810, he was taxed on nineteen slaves out of a
closely involved in decisions about how to total of forty recorded on the federal census of372 JOURNAL OF SUPREME COURT HISTORY
that year. Over the next ten years, the number to Kentucky in 1785 and the son to Richmond
of taxed slaves rose from twenty-two to around the same time. From 1806 through
twenty-eight in 1820, when the federal census 1826, Marshall’s name shows up intermit-
counted a total of thirty-nine. In 1830, tently in the Fauquier tax records, recorded as
Marshall paid taxes on thirty-one slaves, just paying taxes on slaves ranging in number
under half the total of sixty-two reported on the from a high of thirteen down to three.
federal census.21 Marshall’s two oldest sons, Thomas and
As for Fauquier County, the 1810 federal Jaquelin, first appear as slaveholding tax-
census recorded eight slaves under “John payers in 1812, joined by John, Jr., in 1817,
Dawson for Marshall”; in 1820, seventeen James in 1822, and Edward in 1828.23
slaves were listed under “J Judge Marshall.” The federal census and Virginia personal
As noted above, the 1830 federal census property records need to be analyzed more
counted forty plus slaves under an overseer’s closely to obtain a clearer picture of Mar-
name and at Marshall’s quarter.22 Marshall shall’s slaveholding as it developed over
appears in the county personal property books time, from one slave in 1783 to hundreds
as early as 1783 as owner of one taxable slave. owned by the Chief Justice and his five sons
That same year, his father, Thomas Marshall, in 1830. This is a task future biographers
is shown holding twenty-one slaves, includ- cannot ignore. One question to pursue is how
ing twelve not taxed. Both father and son then and why Marshall came to own so many more
disappear from the books, the former moving slaves than he was previously known to
possess. Did he initially intend to make
sizeable investments in this sort of property?
Marshall by age thirty had settled
permanently in Richmond and begun to
practice law. This suggests a deliberate
decision not to depend on slave labor, at
least not directly, as the means of building up
the family fortunes. The Fairfax lands
purchase was undertaken to provide a steady
source of income as a landlord. Of particular
interest to Marshall was Leeds Manor,
situated mostly in his native Fauquier County.
At the time of the 1793 purchase contract,
Marshall had two sons. A daughter followed
in 1795, and then three more sons were born
between 1798 and 1805. Marshall hoped his
sons would take up professions. He was
disappointed when Thomas did not follow
him into law. Another son was educated to be
a physician. Marshall surely did not anticipate
that all five sons would become farmers.
Eventually, he set aside a portion of Leeds
Manor, as well as the Oak Hill estate inherited
To the Chief Justice’s disappointment, his son from his father—not part of Leeds—for his
Thomas chose to be a farmer and not a lawyer. sons. Against his original anticipation and
Marshall passed on the Oak Hill estate he inherited
from his father to him. All five sons became farmers, inclination, Marshall was drawn into deeper
drawing Marshall more deeply into slave-holding. engagement with slavery through his farmerREVIEW OF SUPREME INJUSTICE 373
sons. Conceivably, the slaves belonging to Marshall surely partook of the racism
Thomas Marshall’s estate in 1784 formed the that permeated white antebellum society
core group on which the Chief Justice drew to north and south. He unreflectingly accepted
give to his sons as they came of age and that blacks were a subordinate or degraded
married. class. Like most white Americans of the time,
Farming land with slave labor on the he did not believe that whites and blacks
Chickahominy may not have figured in could live together in freedom and equality.
Marshall’s long-term plans as he settled into He was alarmed by the growing numbers of
law practice in Richmond during the 1780s. As free blacks, especially after the Nat Turner
with his other lands, he appears to have bought uprising in 1831. He publicly supported
the Chickahominy tract with the intention of efforts of the American Colonization Society,
selling or leasing. In time he set up a farm and of which he was a member, to colonize free
built a small house as a refuge for his wife and blacks in Liberia, though in private he
as a place for him to engage in the “laborious probably thought colonization was a mere
relaxation” of agriculture.24 Presumably, he palliative. He shared the nearly universal
acquired additional slaves to work the farm, or belief among whites that emancipation with-
perhaps he had a ready supply in the surplus out removal would expose the nation to a
beyond what he needed for his Richmond dangerous underclass of free blacks.
household. In any event, as time passed, In the wake of the Nat Turner episode,
Marshall found himself becoming more Marshall, as chair of the Colonization Society
deeply entrenched in slavery. of Virginia, submitted a petition to the
Virginia legislature in December 1831 urging
that body to provide funds to expedite
colonization. To sound the alarm and prompt
Slavery Jurisprudence
quick legislative action, the memorial spoke
The long discussion of Marshall as a “of the miseries of the condition, and the vices
slave owner is but a prelude to the expose of of the life of the free person of colour. The one
the “unjust” Justice. In Finkelman’s eyes, is an anomaly of wretchedness; the
Marshall’s “vast slaveholding,” his deep other a vegetation of sloth, or an activity of
personal investment in slavery, “seems to mischief and roguery.” It went on to say that
have affected his jurisprudence” (at p. 48). “half the criminals” tried for larceny in
Finkelman later drops the “seems” and asserts Richmond were “free persons of colour.
unequivocally that Marshall was so deeply Their idleness is proverbial . . .” After
implicated in slavery that it shaped him into a expressing alarm about their rapidly multi-
jurist peculiarly hostile to claims for freedom plying numbers, the memorial concludes:
and unwilling to support efforts to suppress
the slave trade. Finkelman verges on a crudely If it be fixed as destiny, that the slave
reductionist explanation of Marshall’s slavery on the day of his subjection loses
jurisprudence as a reflection of selfish half his worth, it seems equally
material interests. He also sees racism lurking. certain that the free negro on the day
“Marshall’s most aggressive racism and of his emancipation, loses all. And
hostility to free blacks never appeared on yet this same individual, the pest of a
the pages of U.S. Reports or in a book like land which gives him only birth,
Jefferson’s Notes on the State of Virginia,” when transported to a seat where his
he writes, “but he carried these ideas to the industry may have excitement and
bench when he heard cases involving slavery” object, becomes the active, thriving
(at p. 51-52). and happy Colonist of Liberia.25374 JOURNAL OF SUPREME COURT HISTORY
Shocking as it is to modern ears, this unaware that this work had already been done
characterization of free blacks was sadly and subjected to analysis by legal scholar Leslie
commonplace at the time even among those Friedman Goldstein, whose 2007 article in-
who sincerely hoped for some sort of general cludes a table conveniently summarizing all the
emancipation. The Colonization Society’s Marshall Court slavery cases and their dispo-
memorial was one of dozens presented to sitions. Her careful study shows that the
the legislature, many repeating this harsh Marshall Court often failed to uphold black
language as if following a prescribed text.26 freedom, even in cases that presented a legally
James Madison, who agonized over the respectable alternative. This was particularly
contradiction between slavery and the future true, Goldstein says, up until around 1817; after
of his beloved republic, noted that free blacks that year, she finds the Court moving “the law in
were “every where regarded as a nuisance, a more pro-liberty direction.”29
and must really be such as long as they are Finkelman might not dispute Goldstein’s
under the degradation which public sentiment conclusions about the overall trend of
inflicts on them.” Even Madison’s great Marshall Court decisions on slavery. How-
admirer, Frances Wright, the Scottish-born ever, his focus is not on the Court as an
social reformer and utopian advocate for institution but on the Chief Justice as an
emancipation, agreed that free blacks “form individual. If the Court did shift toward
the most wretched and consequently the most freedom, this was not true of Marshall, who
vicious portion of the black population.”27 “never” supported a slave’s claim to liberty or
Although one cannot help but wince at the punished illegal participation in the slave
description of free blacks as idle, prone to trade (at p. 5). Although one might quibble
mischief and criminality, and as pests, Mar- with Finkelman’s emphatic assertion that no
shall, like Madison and Wright, seems to treat Marshall opinion came down on the side of
these characteristics as arising not from their “freedom,” even the Chief Justice’s warmest
blackness but from their “wretched condition” admirers must acknowledge that he “adhered
that reduced them below the level of slaves. to the law of slavery with a rigor that is
When this “pest” is transported to Liberia, “his painful to observe.”30 He resolutely shied
industry may have excitement and object,” and away from judicial rulings that could be
he “becomes the active, thriving and happy perceived as challenging the system.
Colonist of Liberia.” However preposterous, do With characteristic prosecutorial zeal,
these comments mark the chief justice as a Finkelman impugns Marshall’s very integrity
racist on a par, say, with Jefferson or Taney? as a jurist. It is not only that Marshall hid
From the 1831 memorial with its fateful “pest” behind the “mask of the law”—that when
remark, Finkelman extrapolates a lifelong claims to freedom clashed with property
racial animosity toward free blacks that rights he invariably and timidly invoked the
predisposed Chief Justice Marshall to rule judge’s duty to obey the “mandate” of the law
against slave freedom.28 rather than moral “feelings.”31 It was that, in
Having to his satisfaction posited a deep- cases dealing with slaves, Marshall ignored or
seated racism and self-interest as a slave-owner flouted accepted and widely prevailing legal
as determinants of Marshall’s jurisprudence, principles and rules. He acted arbitrarily and
the author considers some thirty Supreme Court callously in denying freedom to claimants.
cases dealing with slavery between 1805 and Marshall’s “proslavery jurisprudence dove-
1830. He divides these into two classes: suits tailed with his lifelong, ambitious accumula-
for freedom and cases involving the African tion of slaves; his hostility to freedom cases
slave trade. He identified these cases by reflected his lifelong fear and loathing of free
computer search, though he was apparently blacks” (at p. 222).REVIEW OF SUPREME INJUSTICE 375
According to Finkelman’s exacting four cases, the Court reversed the lower court
standards, there seems be but one correct and sent the case back for a new trial. One
outcome in freedom suits. Given that Marshall might ask if eight rulings against freedom, four
was enmeshed in a system that sanctioned the of which sustained the lower court, constitute a
legality of slavery and that recognized sample large enough to reveal a consistent
ownership of human beings as a property pattern of bias rather than mere coincidence. If
right no different in kind from other “sacred” it does show partiality against liberty for slaves
rights of property, could a decision in favor of and for the property rights of the master, is this
an owner’s title claim and against an enslaved result attributable to a law that is inherently
person’s claim to freedom meet his test? Each biased or to the particular prejudices of
party in a freedom suit has at least a plausible Marshall? This brings up the question of
case supported by evidence and authorities. If who is on trial here—Marshall or the Marshall
the ruling goes against the slave petitioner— Court. When the Chief Justice delivers the
against the evidence and authorities adduced decision against freedom, he alone bears the
in support of the petition—does this in itself full brunt of Finkelman’s obloquy. However,
show bias against slave freedom? Is it possible when another Justice gives the opinion—for
for a judge in such a system to adjudicate example, Johnson in Mason v. Matilda—
competing claims in a disinterested and blame is diffused from the individual to the
impartial way that denies slave freedom? If institution. In this case, it was the “Marshall
a decision in favor of freedom could only be Court” that once again “snatched” freedom
accomplished by disregarding established from slaves (at p. 67-68). The Chief Justice, of
rules of property, what is a judge to do? In a course, often wrote or delivered the opinion,
legal system that was so brutally weighted leaving a large paper trail. Perhaps we need to
against the rights of black slaves, how do we be reminded that Marshall was but one of
distinguish between the bias of the law and the seven Justices who decided the case. There is
bias of the judge? Finkelman gives no no doubt that he fully subscribed to the
indication of taking these questions into opinions he delivered denying freedom. It
account as he castigates Marshall for misread- should also be acknowledged that those
ing or flouting law, ignoring relevant prece- judgments, however severe their effects in
dent, or otherwise refusing to interpret keeping claimants in bondage, were reached
precedent or a statute to free a slave. All is through deliberation and consensus.
bright and clear; there is no ambiguity or Finkleman creates a false picture of a
nuance. Chief Justice as an autonomous agent,
The Marshall Court decided thirteen seemingly free to act arbitrarily and in
freedom suits. Many of these came up from complete disregard of law and precedent to
the U.S. Circuit Court for the District of deny freedom. With characteristic confidence,
Columbia. In these cases, the Supreme Court he assures us that Marshall “might easily have
was a highest appellate court applying the laws upheld” freedom, “chose to read the statute in
of Maryland and Virginia in the District’s two favor of slavery,” “might easily have given” a
counties of Columbia and Alexandria. In eight statute a pro-freedom construction, “should
cases, the Court ruled against the petitioning have” rejected an argument as a “nonstarter,”
slave.32 With the exception of Mason v. “ought to have held” in favor of freedom,
Matilda (1827), in which Justice William “could easily have found an exception to
Johnson spoke for the Court, Chief Justice hearsay rules in freedom suits” (at p. 58, 60,
Marshall gave the opinion denying the claim 61, 62, 64). In his telling, there are no legal or
of freedom. In four decisions against freedom, institutional constraints that might have
the Court upheld the lower court.33 In the other narrowed judicial discretion. Invariably, he376 JOURNAL OF SUPREME COURT HISTORY
attributes Marshall’s anti-freedom jurispru- In three early freedom cases decided
dence to free and deliberate choice, reflecting between 1806 and 1812, the Supreme Court
“his concerns with the ownership of private reversed circuit court judgments for freedom.
property, his persistent acquisition of slaves, Two of them turned on the construction of
and his hostility to the presence of free blacks Maryland and Virginia laws for preventing
in his society” (at p. 63). If Marshall’s opinions importation of slaves, each containing a
so egregiously and maliciously misread the proviso for masters intending to move into
law, why, except for Mima Queen v. Hepburn, the respective states. Finkelman harshly
did they not provoke outraged dissent? Finkle- condemns the Chief Justice’s rulings that
man appears to believe that the Chief Justice the claiming masters came within the proviso.
was so dominant or his brethren so craven that In the first of these cases, Marshall “might
he could easily impose his ungenerous and easily have upheld freedom” by adopting the
mean-spirited views as the opinion of the reasoning in other state cases. Only one such
Court. case had occurred earlier, however, and none
In five cases, the Court upheld freedom.34 were cited in argument (at p. 56-59). The
“Significantly,” writes Finkelman, Marshall Chief Justice, joined by the other four Justices
did not write the opinion in any of these cases present, treated the matter as a straightfor-
(at p. 68, 80). As the Chief Justice takes the ward and uncontroversial exercise of statu-
heat for opinions denying freedom, he gets no tory construction that was faithful to the
credit when the Court decides “correctly.” In a “letter” and “spirit” of the law. In the second
backhanded way, Finkelman does acknowl- case, Finkelman baldly accuses Marshall of
edge that Marshall’s silence in one such case refusing “to interpret a law to emancipate a
might have signified more than mere acquies- slave” (p. 60). The Chief Justice himself
cence. “We have no way of knowing whether admitted that the act’s language was ambigu-
Marshall agreed with this result,” he says of ous, conceding that “the one construction or
Justice McLean’s opinion in Menard, “or, the other may be admitted.” But he went on to
having been outvoted on the court, simply explain why the Court, after “an attentive
acquiesced in the outcome” (at p. 73). consideration of that language,” decided as it
Likewise, in Marshall Court decisions that did. The slave claimant lost his bid for
upheld suppression of the African slave trade, freedom, but this unhappy result came after
the chief justice “remained strangely silent.” careful deliberation by the five Justices. All
In a kind of repetitive mantra, Finkelman lets was not lost, however. On a new trial in the
us know that Marshall did not write any of circuit court, the slave claimant obtained a
these opinions, usually prefacing his comment verdict in his favor.35
with “significantly” or “however.” The clear In the third case reversing yet another
implication is that the Chief Justice either verdict for freedom, Finkelman blames the
opposed the opinion or that his acquiescence outcome on “Marshall’s hostility to free blacks
was so tepid that he could not bring himself to and freedom suits.” (at p. 60). The slaves in
write for the Court (at p. 85, 87, 90, 102). In the this case were children of a mother who had
1827 sequel to The Antelope, Justice Robert obtained a verdict for freedom based on
Trimble’s opinion for the Court “recognized descent from a free white woman in England.
the humanity of the remaining Africans and of On the trial of the children’s case, the lower
their right to be returned to Africa. Signifi- court instructed the jury that the verdict for the
cantly, Chief Justice Marshall did not write mother in a case against a different party was
this opinion.” (at p. 101-102). Was this “conclusive evidence” on their behalf. In a
because he did not recognize the “humanity” brief opinion with all seven judges present,
of these Africans? Marshall stated for the Court that the verdictREVIEW OF SUPREME INJUSTICE 377
for the mother was not “conclusive evidence” hearsay evidence is not admissible to prove
in the children’s case because there was “no that the ancestor from whom they claim was
privity” between the two different persons free. From this opinion I dissent.” It is not clear
against whom the freedom claims were filed. whether his actual vote was for or against the
Singling out Marshall for particular oppro- lower court’s ruling. In any event, Duvall’s
brium, Finkelman rebukes him for so readily objection was to the exclusion of all hearsay
accepting an argument “completely at odds” evidence, which he contended was contrary to
with “universally accepted” American law. Maryland law and practice. “It will be
Because of his obsession with property rights, universally admitted,” he wrote, “that the
the Chief Justice “was more concerned about right to freedom is more important than the
the nature of contract law than about the settled right of property,” adding that “people of color
law of every slave jurisdiction in the country or from their helpless condition under the
the freedom of a handful of African Ameri- uncontrolled authority of a master, are entitled
cans.” He “abused his power to deny liberty” to all reasonable protection.”38 These words
to persons “considered free under the laws of constitute a powerful rebuke to the majority
every state in the union.” (at p. 60-62). One opinion. Many have since wondered why the
wonders why this seemingly egregious depar- Court did not adopt Duvall’s position, so
ture from settled law provoked no murmur of accordant with modern sensibilities.
dissent from Justices Washington, Johnson, Marshall spoke on behalf of Washington,
Livingston, Todd, Duvall, and Story. Johnson, Livingston, and Story. Perhaps
Mima Queen v. Hepburn was the Mar- knowing what Duvall was about to say, the
shall Court’s most well-known freedom suit. Chief Justice acknowledged that in deciding
That the Court actually affirmed the lower the case, the Court had to subordinate
court’s denial of freedom in this case perhaps individual “feelings” that might be “inter-
only slightly mitigates the censure directed at ested on the part of a person claiming
that opinion for disallowing hearsay evidence freedom.” If this indicated some discomfort,
to prove the ancestry of a slave claimant. Mima the opinion otherwise betrayed no hint of
(Mina) Queen based her claim on descent from doubt that it stated the law correctly and
Mary Queen, a mulatto, who was alleged to be rested on good authority. To Finkelman,
a free woman. Marshall for the Court found Mima Queen was just another illustration of
against this claim on the principle that Marshall’s “callous attitude toward black
“hearsay evidence is incompetent to establish freedom,” which in turn derived from
any specific fact, which fact is in its nature ownership of “hundreds” of enslaved per-
susceptable of being proved by witnesses who sons. (at p. 62, 65). Kent Newmyer agrees that
speak from their own knowledge.”36 Mostly Mima Queen was “a harsh decision and
silent during twenty-five years on the bench, difficult not to judge harshly.” The case “put
Duvall uttered a brief but pointed dissent that Marshall to the test,” he writes, suggesting
has gained him a measure of acclaim among that he failed the test by expounding the law
students of the Court. The Justice had been a in a way that so clearly favored the property
witness on behalf of Queen at the trial below in rights of the master. The failure did not spring
1810.37 In his dissent, he appeared to agree from the Chief Justice’s personal animus
with the lower court’s exclusion of “double against freedom, Newmyer says; rather, it lay
hearsay” (hearsay of hearsay): “The Court in choosing “objective law” and reading it in a
below admitted hearsay evidence to prove the way that admitted no exceptions in favor of a
freedom of the ancestor from whom the freedom claim in this case. He is also careful
petitioners claim, but refused to admit hearsay to point out that all but Duvall subscribed to
of hearsay. This Court has decided that the Chief Justice’s opinion.39You can also read
