Volume IV Part 54 (2/2)
Pickering, the incessant, in one of his many and voluminous letters to Marshall which the ancient New Englander continued to write as long as he lived, had bemoaned the existence of slavery--one of the rare exhibitions of Liberalism displayed by that adamantine Federalist conservative. Marshall answered: ”I concur with you in thinking that nothing portends more calamity & mischief to the Southern States than their slave population. Yet they seem to cherish the evil and to view with immovable prejudice & dislike every thing which may tend to diminish it. I do not wonder that they should resist any attempt, should one be made, to interfere with the rights of property, but they have a feverish jealousy of measures which may do good without the hazard of harm that is, I think, very unwise.”[1290]
Marshall heartily approved the plan of the American Colonization Society to send free negroes back to Africa. The Virginia branch of that organization was formed in 1829, the year of the State Const.i.tutional Convention, and Marshall became a member. Two years later he became President of the Virginia branch, with James Madison, John Tyler, Abel P. Upshur, and other prominent Virginians as Vice-Presidents.[1291] In 1831, Marshall was elected one of twenty-four Vice-Presidents of the National society, among whom were Webster, Clay, Crawford, and Lafayette.[1292]
The Reverend R. R. Gurley, Secretary of this organization, wrote to the more eminent members asking for their views. Among those who replied were Lafayette, Madison, and Marshall. The Chief Justice says that he feels a ”deep interest in the ... society,” but refuses to ”prepare any thing for publication.” The cause of this refusal is ”the present state of [his] family”[1293] and a determination ”long since formed ...
against appearing in print on any occasion.” Nevertheless, he writes Gurley a letter nearly seven hundred words in length.
Marshall thinks it ”extremely desirable” that the States shall pa.s.s ”permanent laws” affording financial aid to the colonization project. It will be ”also desirable” if this legislation can be secured ”to incline the people of color to migrate.” He had thought for a long time that it was just possible that more negroes might like to go to Liberia than ”can be provided for with the funds [of] the Society”; therefore he had ”suggested, some years past,” to the managers, ”to allow a small additional bounty in lands to those who would pay their pa.s.sage in whole or in part.”
To Marshall it appears to be of ”great importance to retain the countenance and protection of the General Government. Some of our cruizers stationed on the coast of Africa would, at the same time, interrupt the slave trade--a horrid traffic detested by all good men--and would protect the vessels and commerce of the Colony from pirates who infest those seas. The power of the government to afford this aid is not, I believe, contested.” He thinks the plan of Rufus King to devote part of the proceeds from the sale of public lands to a fund for the colonization scheme, ”the most effective that can be devised,”
Marshall makes a brief but dreary argument for this method of raising funds for the exportation of the freed blacks.
He thus closes this eminently practical letter: ”The removal of our colored population is, I think, a common object, by no means confined to the slave States, although they are more immediately interested in it.
The whole Union would be strengthened by it, and relieved from a danger, whose extent can scarcely be estimated.” Furthermore, says the Chief Justice, ”it lessens very much ... the objection in a political view to the application of this ample fund [from the sale of the public domain], that our lands are becoming an object for which the States are to scramble, and which threatens to sow the seeds of discord among us instead of being what they might be--a source of national wealth.”[1294]
Marshall delivered two opinions in which the question of slavery was involved, but they throw little light on his sentiments. In the case of the Antelope he held that the slave trade was not prohibited by international law as it then existed; but since the court, including Story and Thompson, both bitter antagonists of slavery, was unanimous, the views of Marshall cannot be differentiated from those of his a.s.sociates. Spain and Portugal claimed certain negroes forcibly taken from Spanish and Portuguese slavers by an American slaver off the coast of Africa. After picturesque vicissitudes the vessel containing the blacks was captured by an American revenue cutter and taken to Savannah for adjudication.
In due course the case reached the Supreme Court and was elaborately argued. The Government insisted that the captured negroes should be given their liberty, since they had been brought into the country in violation of the statutes against the importation of slaves. Spain and Portugal demanded them as slaves ”acquired as property ... in the regular course of legitimate commerce.”[1295] It was not surprising that opinion on the slave trade was ”unsettled,” said Marshall in delivering the opinion of the court.
All ”Christian and civilized nations ... have been engaged in it....
Long usage, and general acquiescence” have sanctioned it.[1296] America had been the first to ”check” the monstrous traffic. But, whatever its feelings or the state of public opinion, the court ”must obey the mandate of the law.”[1297] He cites four English decisions, especially a recent one by Sir William Scott, the effect of all being that the slave trade ”could not be p.r.o.nounced contrary to the law of nations.”[1298]
Every nation, therefore, has a right to engage in it. Some nations may renounce that right sanctioned by ”universal a.s.sent.” But other nations cannot be bound by such ”renunciation.” For all nations, large and small, are equal--”Russia and Geneva have equal rights.” No one nation ”can rightfully impose a rule on another ... none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it.... It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored.”[1299]
Four months before Marshall was elected a member of the Virginia Const.i.tutional Convention, he delivered another opinion involving the legal status of slaves. Several negroes, the property of one Robert Boyce, were on a steamboat, the Teche, which was descending the Mississippi. The vessel took fire and those on board, including the negroes, escaped to the sh.o.r.e. Another steamboat, the Was.h.i.+ngton, was coming up the river at the time, and her captain, in response to appeals from the stranded pa.s.sengers of the burning vessel, sent a yawl to bring them to the Was.h.i.+ngton. The yawl was upset and the slaves drowned. The owner of them sued the owner of the Was.h.i.+ngton for their value. The District Court held that the doctrine of common carriers did not apply to human beings; and this was the only question before the Supreme Court, to which Boyce appealed.
”A slave ... cannot be stowed away as a common package,” said Marshall in his brief opinion. ”The responsibility of the carrier should be measured by the law which is applicable to pa.s.sengers, rather than by that which is applicable to the carriage of common goods.... The law applicable to common carriers is one of great rigor.... It has not been applied to living men, and ... ought not to be applied to them.”
Nevertheless, ”the ancient rule 'that the carrier is liable only for ordinary neglect,' still applies” to slaves. Therefore the District Court was right in its instructions to the jury.[1300]
The two letters quoted and the opinions expressing the unanimous judgment of the Supreme Court are all the data we have as to Marshall's views on slavery. It appears that he regretted the existence of slavery, feared the results of it, saw no way of getting rid of it, but hoped to lessen the evil by colonizing in Africa such free black people as were willing to go there. In short, Marshall held the opinion on slavery generally prevailing at that time. He was far more concerned that the Union should be strengthened, and dissension in Virginia quieted, than he was over the problem of human bondage, of which he saw no solution.
When he took his seat as a delegate to the Virginia Const.i.tutional Convention of 1829-30, a more determined conservative than Marshall did not live. Apparently he did not want anything changed--especially if the change involved conflict--except, of course, the relation of the States to the Nation. He was against a new const.i.tution for Virginia; against any extension of suffrage; against any modification of the County Court system except to strengthen it; against a free white basis of representation; against legislative interference with business. His att.i.tude was not new, nor had he ever concealed his views.
His opinions of legislation and corporate property, for instance, are revealed in a letter written twenty years before the Convention of 1829-30. In withdrawing from some Virginia corporation because the General a.s.sembly of the State had pa.s.sed a law for the control of it, Marshall wrote: ”I consider the interference of the legislature in the management of our private affairs, whether those affairs are committed to a company or remain under individual direction, as equally dangerous and unwise. I have always thought so and I still think so. I may be compelled to subject my property to these interferences, and when compelled I shall submit; but I will not voluntarily expose myself to the exercise of a power which I think so improperly usurped.”[1301]
Two years before the convention was called, Marshall's unyielding conservatism was displayed in a most conspicuous manner. In Sturges _vs._ Crownins.h.i.+eld,[1302] a State law had been held invalid which relieved creditors from contracts made before the pa.s.sage of that law.
But, in his opinion in that case, Marshall used language that also applied to contracts made after the enactment of insolvency statutes; and the bench and bar generally had accepted his statement as the settled opinion of the Supreme Court. But so acute had public discontent become over this rigid doctrine, so strident the demand for bankrupt laws relieving insolvents, at least from contracts made after such statutes were enacted, that the majority of the Supreme Court yielded to popular insistence and, in Ogden _vs._ Saunders,[1303] held that ”an insolvent law of a State does not impair the obligation of future contracts between its citizens.”[1304]
For the first time in twenty-seven years the majority of the court opposed Marshall on a question of Const.i.tutional law. The Chief Justice dissented and delivered one of the most powerful opinions he ever wrote.
The very ”nature of our Union,” he says, makes us ”one people, as to commercial objects.”[1305] The prohibition in the contract clause ”is complete and total. There is no exception from it.[1306]... Insolvent laws are to operate on a future, contingent unforseen event.”[1307] Yet the majority of the court hold that such legislation enters into subsequent contracts ”so completely as to become a ... part” of them. If this is true of one law, it is true of ”every other law which relates to the subject.”
But this would mean, contends Marshall, that a vital provision of the Const.i.tution, ”one on which the good and the wise reposed confidently for securing the prosperity and harmony of our citizens, would lie prostrate, and be construed into an inanimate, inoperative, unmeaning clause.” The construction of the majority of the court would ”convert an inhibition to pa.s.s laws impairing the obligation of contracts into an inhibition to pa.s.s retrospective laws.”[1308] If the Const.i.tution means this, why is it not so expressed? The mischievous laws which caused the insertion of the contract clause ”embraced future contracts, as well as those previously formed.”[1309]
The gist of Marshall's voluminous opinion in Ogden _vs._ Saunders is that the Const.i.tution protects all contracts, past or future, from State legislation which in any manner impairs their obligation.[1310]
Considering that even the rigidly conservative Bushrod Was.h.i.+ngton, Marshall's stanch supporter, refused to follow his stern philosophy, in this case, the measure and character of Marshall's conservatism are seen when, in his seventy-fifth year, he helped to frame a new const.i.tution for Virginia.
Still another example of Marshall's rock-like conservatism and of the persistence with which he held fast to his views is afforded by a second dissent from the majority of the court at the same session. This time every one of the a.s.sociate Justices was against him, and Story delivered their unanimous opinion. The Bank of the United States had sued Julius B. Dandridge, cas.h.i.+er of the Richmond branch, and his sureties, on his official bond. Marshall, sitting as Circuit Judge, had held that only the written record of the bank's board of directors, that they approved and accepted the bond, could be received to prove that Dandridge had been legally authorized to act as cas.h.i.+er.
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