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 pronounced 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 assent." 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 Constitutional 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 shore. Another steamboat, the Washington, was coming up the river at the time, and her captain, in response to appeals from the stranded passengers of the burning vessel, sent a yawl to bring them to the Washington. The yawl was upset and the slaves drowned. The owner of them sued the owner of the Washington 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 passengers, 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 Constitutional 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 constitution 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 attitude 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 Assembly of the State had passed 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. Crowninshield,[1302] a State law had been held invalid which relieved creditors from contracts made before the passage 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 Constitutional 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 Constitution, "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 pass laws impairing the obligation of contracts into an inhibition to pass retrospective laws."[1308] If the Constitution 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]