The Chief Justice went to the Virginia Convention a firm supporter of the strongest possible property qualification for suffrage. On the question of slavery, which arose in various forms, he had not made his position clear. The slavery question, as a National matter, perplexed and disturbed Marshall. There was nothing in him of the humanitarian reformer, but there was everything of the statesman. He never had but one, and that a splendid, vision.
The American Nation was his dream; and to the realization of it he consecrated his life. A full generation after Marshall wrote his last despairing word on slavery, Abraham Lincoln expressed the conviction which the great Chief Justice had entertained: "I would save the Union. I would save it the shortest way under the Constitution.... If I could save the Union without freeing any slave, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that. What I do about slavery and the colored race, I do because I believe it helps to save the Union."[1289]
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 Constitutional 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 pass "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 passage 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 associates. 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.