Marshall acknowledged that slavery was a terrible “evil” and that “nothing portends more calamity & mischief to the southern states.” Yet he distinguished himself from most of his fellow Virginians, who “seem to cherish the evil and to view with immovable prejudice & dislike every thing which may tend to diminish it.”8 Marshall, like most southern federalists, opposed the slave trade, supported manumission, and wanted to outlaw discrimination and unnecessary regulations on African Americans.9 As a member of the Supreme Court, he forcefully condemned the slave trade as a crime against natural law. Yet, paradoxically, Marshall upheld the right to own slaves in the slave states.10
Marshall was not free of racial prejudice, and he did enjoy the comforts that his household slaves provided to him. Marshall’s attitude toward African Americans was paternalistic. He viewed his slaves as family members who needed his guidance and support. There is no evidence that Marshall ever separated families or mistreated or whipped his slaves—as Thomas Jefferson did.11 It appears that Marshall treated his slaves humanely, and on at least one occasion, he paid for a doctor to care for a slave woman who was ill.12
But, like most white Virginians, Marshall feared what might happen if four hundred thousand slaves were suddenly emancipated. In 1791, slaves successfully revolted in a bloody revolution in Saint-Domingue. The very real threat of a race war was a constant fear of white Virginians. In August 1800, a slave named Gabriel Prosser, who worked as a blacksmith on a plantation just north of Richmond, conspired to lead hundreds of lightly armed slaves in an uprising to seize Richmond. The insurgents planned to kidnap the governor, James Monroe, and hold the capitol in exchange for their freedom. Another slave disclosed Gabriel’s conspiracy only hours before the attack was to begin. Monroe sent the militia to crush Gabriel’s army. At least seventy slaves were prosecuted, and dozens were hanged. Monroe’s brutality toward the slaves threatened to become an issue in the 1800 presidential election. Jefferson worried that hanging so many slaves would hurt his electoral chances in the North, and he persuaded Monroe to cease the executions. Calm was restored by year’s end, but Gabriel’s army had confirmed the worst fear of white Virginians—that there was no possibility of racial coexistence.13 In response to Gabriel’s conspiracy, republicans in the Virginia legislature proposed sweeping measures to crack down on the freedoms of all blacks. Federalists, including Marshall, opposed these measures.14
Marshall thought that ultimately the system of slavery must come to an end and that the federal government must take the lead, but he preferred a gradual end to slavery rather than a sudden and possibly explosive emancipation. Marshall believed that emancipated blacks would be best off if they were sent to Africa with support from the federal government. To this end, Marshall became active in the Society for the Colonization of Free People of Color of America, which was established in 1816. He founded the Virginia Society for Colonization and served as its president from 1827 until his death. When the society became insolvent in the 1830s, Marshall pledged five thousand dollars to support it. He hoped that a process of African colonization would provide an avenue for encouraging emancipation and giving slaves some restitution to help reclaim their lives. Many white Virginians defended slavery precisely because they feared the vengeance that millions of freed slaves might inflict against them. For just that reason, Marshall believed that African colonization offered a way to remove an obstacle to emancipation.15 Of course, most slaves had no ties to Africa and had no reason to leave their homeland for a foreign country. Though today it seems unthinkable that the United States would have deported free blacks to Africa, to Marshall and his contemporaries it seemed just as unthinkable that whites would ever accept blacks as their social equals. More than 150 years after emancipation, it remains to be seen if Marshall was wrong.
Though Marshall did nothing as a member of the Virginia General Assembly to end slavery—that would have been a fool’s errand in the 1780s—he did support some reforms that allowed masters to manumit (free) their slaves and offered emancipation to any slave who served in the U.S. army as a substitute for a white Virginian. In 1783, Marshall voted to define a state “citizen” to include all free persons, white or black, who were born in Virginia.16 It may reflect on Marshall’s own values that in 1832 his son Thomas, as a member of the General Assembly, courageously fought for emancipation.17 Most significant is that Marshall believed in the federal power over the states while knowing that one day the federal government might choose to end slavery. Despite his hope for ending slavery, Marshall did not manumit any of his slaves until after his death, and then he offered freedom to his trusted valet, Robin Spurlock, only if he would settle in Liberia. (Faced with the choice of deportation or servitude, Spurlock chose to remain with Marshall’s daughter to the end of his life.)
The relationship between Marshall and Spurlock was remarkable, and it seems likely that Spurlock made a strong impression on Marshall’s views about African Americans and slavery. Marshall trusted Spurlock to manage his household during his long absences. When Marshall was home, the two men often shared chores. Contemporary accounts describe Marshall going to the market dressed in wrinkled, oversize clothing, his hair wildly askew, closely followed by the meticulous Spurlock. Spurlock was famous in Richmond for his elegant outfits and spirited attitude. He wore well-fitted, brightly colored silk trousers and matching suits with bright yellow socks, flamboyant hats, and patterned scarves. Sometimes he added feathers or gold braids to his eye-catching costumes. Spurlock was graceful and proud while Marshall appeared gawky and informal. When they returned from the market, Marshall would insist on carrying his own basket of groceries. Townspeople quipped about which one looked more like a famous attorney.18
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OVER THE COURSE of his practice as a lawyer, Marshall handled a few cases concerning slavery. In three of these cases, he defended the slaves pro bono. Why would a provincial lawyer and politician accept cases without pay that would bring him into conflict with his affluent neighbors and clients? Marshall acted out of principle and against his own economic self-interest. But how did he come to represent enslaved clients? The most likely explanation is that Spurlock, who was a leader in the Richmond slave community, sought Marshall’s help on behalf of these slaves. For a slave to ask his master to defend another slave must have seemed odd, but if this is what happened, it is some measure of Spurlock’s relationship with Marshall.19
Three of these slave cases related to mixed-race children born to an Indian woman and a slave father. Both Virginia law and Indian tribal law regarded these offspring as full-blooded Indians and therefore free. But some slaveowners continued to enslave these children. Marshall sponsored a law in the General Assembly to punish anyone trying to sell such mixed-race offspring as slaves.
The status of a mixed-race child was a particularly sensitive subject for white slaveholders, who often fathered children with slaves. The three cases Marshall brought established judicial precedents for defending the liberty of these mixed-race children.20
Marshall also defended an African American woman, Angelica Barnett, who was wrongly accused of murder. In 1793, Barnett was a free black woman living in Richmond. One night a white man, Peter Franklin, broke into her home to look for his runaway slave while she was asleep. Franklin assaulted her and threatened to bludgeon her in front of her terrified children. She grabbed an ax and struck him in the head, killing him. Barnett was quickly tried, convicted, and sentenced to death. White and black women of Richmond, including Marshall’s wife, Polly, vigorously protested. Marshall, perhaps urged by Polly and Spurlock, agreed to organize the leading attorneys in Richmond to petition Governor Henry Lee for a pardon. Marshall’s efforts succeeded, and Barnett was freed a day before she was scheduled to hang.21
In another case that began in 1799, Marshall fought for the manumission of four hundred slaves. John Pleasants, a Quaker slaveholder who died in 1771, wanted to free his slaves when t
hey reached the age of thirty, but Virginia law at that time would not permit it. So in his will Pleasants left his slaves to his heirs with the condition that if manumission ever became legal his slaves should be set free. After Virginia legalized private manumission in 1782, Pleasants’s son and executor, Robert Pleasants, freed his slaves in deference to his father’s intentions. John Pleasants’s other heirs—in particular, his daughter Mary, who had inherited three hundred of her father’s slaves—refused to comply with the manumission clause. Robert Pleasants retained Marshall to file suit in the Virginia High Court of Chancery to force the other heirs to honor Pleasants’s will and manumit their slaves. It was an uphill challenge. The chief obstacle Marshall faced was that the will violated the notorious “rule against perpetuities,” which limits a person’s ability to tie up a future interest in property beyond the length of a particular individual’s life plus twenty-one years. Since John Pleasants died not knowing if, or when, the Virginia legislature might permit manumission, the provision clearly violated the rule. The case came before Marshall’s former law professor, Chancellor George Wythe.
Marshall made a novel argument that the rule against perpetuities should not apply because the slaves were not “property” for purposes of this case; they were, in fact, the beneficiaries of Pleasants’s will. Chancellor Wythe concurred and ordered that all four hundred slaves be freed. This was a stunning but short-lived victory. Pleasants’s heirs appealed, and Wythe’s ruling was reversed by the Virginia Supreme Court of Appeals. The slaves remained in bondage.22
However, Marshall did profit, albeit indirectly, from transactions involving slaves. One of Marshall’s most significant cases concerned Martha Wayles Jefferson, the wife of Thomas Jefferson. It began when Richard Randolph, one of Marshall’s cousins, and John Wayles, Jefferson’s father-in-law, contracted in 1772 for a consignment of 280 slaves. The slaves would be shipped from Africa aboard the Prince of Wales, a British slaver. The consignment was arranged and financed by a British trading company, Farell & Jones.
Before Randolph died, he was facing financial ruin. Seeking to protect his estate from his creditors, he transferred whatever property he had left to his heirs. After Randolph’s death in 1795, Farell & Jones sued Randolph’s estate for the nearly ten thousand pounds owed for the slaves (about two million dollars today). Marshall successfully defended Randolph’s bankrupt estate from the British creditor.23
Unable to collect from Randolph’s estate, Farell & Jones next sought a judgment against Wayles’s estate for the debt owed by Randolph. In response, the executors of Wayles’s estate, Martha Wayles Jefferson and her brother-in-law, sued Randolph’s estate, asking the court to set aside the transfers of Randolph’s property to his heirs so that this amount could be used to indemnify Wayles’s estate for the debt owed to Farell & Jones. The case pitted Marshall and the Randolph estate against Jefferson, and it dragged through state and federal courts for many years.24
Marshall eventually lost the argument on behalf of Randolph’s estate in the High Court of Chancery, and he appealed to the Virginia Supreme Court of Appeals. There he crafted a winning argument that Randolph’s heirs should not be burdened by the debt owed to Farell & Jones based on British common law.25 Marshall’s legal victory left the Wayles estate—and by extension, Jefferson—indebted to British slavers for millions of dollars.26 Jefferson bitterly complained that the British merchants had enslaved Virginia planters with “debts that had become hereditary from father to son for many generations so that the planters were a species of property annexed to certain mercantile houses in London.”27 But Jefferson’s bondage to his family’s debt was only a metaphor; his family’s profit from the sale of 280 souls was a harsh reality.
Marshall’s role in depleting Martha Jefferson’s inheritance may be seen as rough justice when one considers that Jefferson’s father took control of the Randolph estate at Tuckahoe, where Marshall’s grandmother was raised. From Jefferson’s perspective, Marshall’s victory was just another wound in his long struggle with Marshall. The earliest wound may have come when Marshall married Polly, who was the daughter of Jefferson’s first love, Rebecca Lewis Burwell. Burwell’s marriage to Jaquelin Ambler was a crushing blow to the young Jefferson.28 From Jefferson’s point of view, Marshall seemed to be continually encroaching on both his personal life and his political projects. The outcome of the Wayles litigation added more toxin to the already poisoned relations between cousins.
Neither Marshall nor Jefferson was innocent of profiting from slavery, but while Marshall engaged his slaves as members of his own household, Jefferson averted his gaze from the cruel source of his own wealth. At Monticello, for instance, he designed his house and arranged his household to minimize encounters with his own slaves. When dining at home, Jefferson preferred to serve himself from a dumbwaiter rather than allow slaves in his presence.29 He closed his eyes to the egregious contradictions in his own slaveholding. Jefferson withdrew from people and found comfort in elegant abstractions; Marshall, by contrast, leaned in to embrace the muddle of humanity.
Marshall, like Jefferson, was guilty of hypocrisy—fighting for liberty in the Revolutionary War while denying it to others. But Marshall engaged with real people in real-life situations. If Jefferson lived his life in poetry, Marshall lived his in prose. For him, the struggle for human dignity was experienced in the cases he won, in his support for African colonization, in his defense of the federal power to end slavery, and in the humanity and respect he showed to the least among us in his quotidian routines.
CHAPTER FIVE
INNOCENCE LOST
Half a world away from the serenity of Marshall’s Virginia, events in France were taking place that would change the trajectory of his life and bring him to national prominence. To understand how Marshall became the lion of the Supreme Court, it is necessary to understand how the French Revolution polarized the United States and defined our political parties. These events would also set Marshall on a collision course with his cousin Jefferson.
In July 1789, a little more than two months after President-elect Washington took the oath of office for the first time in the temporary national capital, New York City, the long-simmering French Revolution erupted. Most Americans welcomed news of the fall of the Bastille and the establishment of a republic, smug in the confidence that their French cousins were following in their footsteps. Americans assumed that France would establish a liberal republic modeled after the United States. “We were all strongly attached to France,” Marshall recalled, “scarcely any man more strongly than myself. I sincerely believed human liberty to depend in a great measure on the success of the French Revolution.”1
No man better exemplified the connection between the American and French revolutions than General Lafayette, whose leadership in the Continental Army had been critical to the success of the American Revolution. Lafayette had returned to France after the American Revolution. He became the leader of his own party of moderate reformers known as the Fayettistes. The morning after the fall of the Bastille, the French National Assembly appointed Lafayette commander of the National Guard to maintain order. As a tribute to his former commander in chief, Lafayette sent Washington the key to the fallen Bastille, which Washington proudly hung on the wall of the presidential mansion in New York City. Americans celebrated the French Revolution with parades, toasts, and fireworks. Gentlemen demonstrated their support by singing “La Marseillaise” and wearing cockades with the French tricolors. They wore long trousers in place of their conventional silk knee breeches to emulate the radical French working class.2
Even before the Bastille was overrun, Jefferson, who became the U.S. minister to France in 1784, disregarded diplomatic protocol to support the Fayettistes. He encouraged them to remove Louis XVI, the United States’ principal ally, and seize power. Jefferson was either disingenuous or uninformed in his reports back to Congress. In 1786, as the rumblings of revolution in France were already audible, Jeffe
rson blithely reassured Abigail Adams in a letter that “here we have singing, dancing, laughter, and merriment. No assassination, no treasons, rebellions nor other dark deeds.” Jefferson acknowledged that there were “some little bickerings between the king and his parliament,” but he did not foresee any rebellion.3 To Washington, he predicted in 1788 that “the present disquiet will end well.”4 Even after the fall of the Bastille and the increasing disorder of the Paris mob, Jefferson maintained a sanguine view of the revolution’s prospects. He reported to Secretary of State John Jay that stories of mass executions and tumult were wildly exaggerated. He dismissed rumors that the French royal family and the aristocracy were in danger. According to Jefferson, only three people were killed in all the rioting that followed the fall of the Bastille. (In fact, at least one hundred people were killed, and more than seventy were injured.5) “Tranquility is now restored to the capital,” Jefferson wrote. “[T]he shops are again opened; the people resuming their labors, and if the want of bread does not disturb the peace, we may hope a continuance of it.”6
Jefferson was beguiled, as he often was, by his ideology. His rose-colored reports to Congress kept American policymakers ignorant of the extremism of the French revolutionaries.7 Only a month after the fall of the Bastille, Jefferson returned to the states still bubbling with enthusiasm for the revolution. In his last letter from Paris, he wrote to Thomas Paine that order had been established throughout France: “I think there is no possibility now of any thing’s hindering their final establishment of a good constitution, which will in its principles and merit be about a middle term between that of England and the United States.”8 Jefferson did not anticipate danger and therefore was not prepared for the tumultuous events that engulfed Europe any more than he had prepared Virginia for attack by the British when he was governor. Later, as secretary of state, he continued to misjudge the character of the French Revolution with dire consequences for the United States.
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