In 1901, James Bradley Thayer wrote a short biography of Chief Justice John Marshall. (You can download the book here for free.) At the end of this little book, Thayer, a legal giant in his own right, beautifully describes a monument to the greatest Chief Justice in our nation’s history.
On the west side of the Capitol at Washington, midway between the staircases that ascend from the garden to the great building, and a little in advance, there is a colossal bronze figure of Marshall by the sculptor Story, the son of the great man’s colleague and friend, —placed there in 1884. It is a very noble work of art, worthy of the subject and the place. The Chief Justice is sitting, clothed in his judicial robe, in the easy attitude of one engaged in expounding a subject of which he is master. The figure is leaning back in the chair with the head slightly inclining forward; the right arm rests on the arm of the chair, with the hand open and extended; the left hand, holding a scroll, lies easily on the other arm of the chair. The crossed legs are covered by the gown, while low shoes and buckles, and hair gathered in a queue, speak of life long habits. The solid and beautiful head, and the grave and collected dignity of the features and the whole composition are very noble, satisfactory, and ideally true.
Thayer concludes his description of the monument this way:
The figure, standing, would be ten feet high. It sits seven feet high, and is raised upon a suitable pedestal, decorated with marble bas-reliefs of classical designs. These, if the truth were told, might well be spared, but the statue itself will fitly commemorate for many ages one of the greatest, noblest and most engaging characters in American history.[i]
(Italics by Kopf.)
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 African slaves, some of the claimed owners being Portuguese and Spanish. The U.S. Supreme Court heard five days of arguments before packed audiences.
Marshall himself delivered the unanimous opinion declaring the slave trade a violation of natural law but not the law of nations. Since the international slave trade was illegal in the United States (while enslaving blacks already in the United States remained lawful for decades thereafter), slaves bound to America were released, but because slavery was legal in Portugal and Spain, slaves “belonging” to those owners were returned to bondage.
One cannot dispute that the Chief Justice declared that the international slave trade (and presumably slavery writ large) was morally wrong. In the Antelope case he writes, “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.”
Clearly, slavery made the Chief Justice itch. But the Chief Justice’s tepid intellectual antipathy for slavery did not mean that he was an abolitionist. Indeed, he owned slaves, and upon his death he bequeathed all his slaves but one to others. He granted freedom (if the slave chose it) to his manservant Robin, who served Marshall throughout his life, and gave Robin the sum of $100 to make his way to Liberia.[ii]
Still further, in a letter to a man who owed him money, the Chief Justice suggested that Marshall’s debtor pay off a debt that Marshall himself owed to a third person and that the man do so with slaves. The 1807 letter, using his title as Chief Justice, reads as follows:
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…
It is well known that Chief Justice Marshall, for better or worse, gave the federal judiciary the power to declare what the federal laws and Constitution mean. He gave us judicial review. And, ironically, without that power Brown v. Board of Education and so much more could never have come to pass.
So, in the current craze to do away with memorials to monsters,[iii] what shall we do with the monument to Chief Justice John Marshall, the greatest Chief Justice in our history? Because I am a white man of a certain age, you can guess my answer.
But I wonder what you think?
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] Now, it is located at the Supreme Court, 1 First Street, Northeast, Washington, D.C.
[ii] Frances Howell Rudko, Pause at the Rubicon, John Marshall and Emancipation: Reparations in the Early National Period?, 35 J. Marshall L. Rev. 75, 77-79 (2001). Marshall added: “[I]f he does not go thither I give him fifty dollars shuld it be found impracticable to liberate him consistently with law and his own inclination, I desire that he may choose his master among my sons, or if he prefer my daughter that he may be held in trust for her and her family as is the other property bequeathed in trust for her, and that he may be always treated as a faithful meritorious servant.”
[iii] Chief Justice Roger B. Taney, author of the 1857 Dred Scott decision, succeeded Chief Justice Marshall. Taney’s statue has now been removed from Maryland’s State House according to a Washington Post article. The article has a video clip showing workers stealthily taking the statue down in the dark and early morning hours of August 18, 2017. That got me thinking about Justice Oliver Wendell Holmes, Jr., perhaps the greatest legal mind in America’s history. In 1927, Holmes wrote the 8–1 majority opinion in Buck v. Bell, a case that upheld the Virginia Sterilization Act of 1924. The opinion is wonderfully short, and it is the ultimate expression of legal realism. Holmes pithily put it this way: “Three generations of imbeciles are enough.” I wonder whether we should remove his gravestone from the Arlington National Cemetery for this offense to the present-day sensibilities of those who are woke.