Sold – John Marshall Seeks to Pay a Debt by Using Slaves Instead of Cash

The longest serving Chief Justice in Supreme Court history, Marshall dominated the Court for over three decades and played a key role in the development of the American system of government. He established that the courts are entitled to exercise judicial review, the power to strike down legislation that violates the Constitution. This established the position of the judiciary as an independent and co-equal branch of government. In addition, Marshall made important decisions relating to Federalism, shaping the balance of power between the federal government and the states while also confirming the supremacy of federal law over state law. His expansive reading of the enumerated powers under the Constitution shaped the permitted activities of the legislative branch as well.

The greatest flaw in the government that Marshall influenced to such a high degree was its failure to effectively deal with the question of slavery, and this flaw would lead to confrontation and Civil War. The Chief Justice, a Virginian slaveholder, was well situated to impact law on this issue.  One biographer, Albert Beverage, states that Marshall regretted the existence of slavery but saw no way of getting rid of it. Another, Charles Hobson, opined that he had a personal distaste for slavery but was reluctant to second-guess legislative determinations that slavery was lawful. Moderation on the slavery question was a key component of Marshall’s judicial philosophy. Not everyone holds such a positive opinion of his conduct. Historian R. Kent Newmyer believes that Marshall found no moral fault with slavery, and that he "showed little interest in the subject." This disinterest had consequences, as Marshall’s Court manifested no appreciation for the constitutional nature of slavery. When Mima Queen v. Hepburn, 11 U.S. [7 Cranch] 290 (1813) gave the Court a chance to place human rights before property rights, Marshall decided for property rights.

The Antelope Case offers one opportunity to observe the public manifestation of Marshall’s beliefs. In 1820, the U.S. Revenue Cutter Dallas seized a slave ship, the Antelope, sailing in international waters under a Venezuelan flag with a cargo of 281 Africans, some of the claimed owners being Portuguese and Spanish. The U.S. Supreme Court heard five days of arguments before packed courtrooms, and Marshall himself delivered the unanimous opinion declaring the slave trade a violation of natural law but not the law of nations, meaning that it may be wrong but is legal where protected by legislation. Since the international slave trade was illegal in the United States, slaves bound there were released, but since it was legal in Portugal and Spain, slaves of those owners were returned to bondage. In his opinion, Marshall stated:?“The question whether the slave trade is prohibited by the law of nations has been seriously propounded…That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labour, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission…Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful.” Further on slavery, he criticized the French revolutionary abolitionists for trying to attain “some fancied, untried good,” saying that instead of attempting  “slow and cautious steps which gradually introduce reform without ruin which may prepare and fit society for that better state of things designed for it,” they “formed the mad and wicked project of spreading their doctrines of equality among persons, between whom distinctions and prejudices exist to be subdued only by the grave.” Thus, there seems to be a contradiction between his belief that slavery is unnatural and that gradual measures against it are appropriate, with his point that equality doesn’t exist on earth.

How did Marshall, as Chief Justice of the U.S. Supreme Court, conduct himself in his private life? Records are scarce.  In this extraordinary letter, he shows that he considered slaves commodities to be used to repay debts.

Autograph Letter Signed as Chief Justice, the Marshall family estate at Happy Creek, Va., February 2, 1807, as to a correspondent who owes him money, suggesting that he pay Marshall’s debt to his brother-in-law Rawleigh Colston with slaves. “I have long owed Mr. Colston money which has been heavy on me & which I have struggled hard to pay, but have not yet entirely succeeded. He is now urgent with me to pay him as he wishes to increase much his stock of negroes. I have in this situation of things been induced to give him an order on you for $2,000. I have not stated a time of payment, knowing that if you and Mr. Colston meet you can readily agree on that, as I suppose he will not be unwilling either to take negroes or wait until you can without inconvenience pay him the money…”