Not the Most Insignificant Justice: Reconsidering Justice Gabriel Duvall’s Slavery Law Opinions Favoring Liberty

Abstract

Not the Most Insignificant Justice: Reconsidering Justice Gabriel Duvall’s Slavery Law Opinions Favoring Liberty ANDREW T. FEDE Joseph Story and Gabriel Duvall began their careers as Supreme Court Justices on the same day in February 1812, but the reputa­ tions of these nominees of President James Madison diverged widely. Story is ranked among the Court’s leading Justices. Duvall’s standing, in contrast, fell so far by the 1930s that Ernest Sutherland Bates, in his book The Story of the Supreme Court, labeled him “probably the most insignificant of all Supreme Courtjudges[.]” Bates implied that, at nearly sixty years of age, Duvall was too old when he was nominated to the Court; he thus devalued Duvall’s nearly twenty-four years as a Maryland lawyer, state courtjudge, and legislator; his two years as a United States Congressman; and his nine years as the first Comptroller of the United States Treasury. Bates also suggested that Duvall should have resigned from the Court soon after his appointment because “he became a few years later so deafthat he could not hear a word said in Court[.]”' Others based later critiques on the dearth of Duvall’s published Supreme Court output—fifteen opinions for the Court and one dissenting opinion—although they acknowledged that, during this era, Chief Justice John Marshall dominated the Court with his collegial approach to decision making and opinion writing.2 On the other hand, Irving Dilliard, who wrote the entry on Duvall in The Justices of the United States Supreme Court 1789-1969, accused Bates of making “a manifestly unfair judgment’’ about Duvall’s almost twenty-three-year career on the Court.3 Indeed, Duvall deserves further reevaluation, but not because of the recently revealed genetic link that he, President Barak Obama, and Vice President Richard Cheney have to Mareen Duvall, a mid-1600s Hugue­ not immigrant from France and an early 8 JOURNAL OF SUPREME COURT HISTORY Maryland slave owner.4 Instead, Duvall’s two slavery-law opinions favoring liberty when enslaved peoples’ freedom was at issue, reconsidered in their historical context, enhance Duvall’s place in Supreme Court history. Duvall’s only dissenting opinion, which he filed in Mima Queen v. Hepburn (1813),5 contradicted Marshall’s version of the hearsay rule, which Duvall believed would deny “reasonable protection” to “people of color.” And in Le Grand v. Darnall (1829),6 Duvall used the implied manumission doctrine to affirm ajudgment in an interracial diversity suit confirming that Nicholas Darnall was freed by his father and owner. These opinions by Duvall, who in 1783 owned at least eight slaves and whose 1844 estate included thirty-six slaves, stand in contrast to the anti-manumission and pro-slavery trend that swept through the antebellum Southern courts and legislatures, reaching the Supreme Court in Scott v. Sandford (1857).7 Duvall’s Freedom Suits and the Early Hearsay Rule Duvall’s experiences as a Maryland lawyer between 1778 and 1796, when he became a Maryland General Court judge, may have influenced his slavery lawjurispru­ dence. He was among the lawyers who represented enslaved claimants seeking freedom under the law. Other prominent Maryland lawyers who pursued these claims included Philip Barton Key; Philip’s nephew Francis Scott Key, writer of the lyrics to our national anthem; and Francis’s brother-inlaw , future Chief Justice Roger B. Taney. Maryland law, like the law in most slave societies, provided enslaved people with procedures to assert and establish that they were unlawfully held in bondage. The successful claimants generally advanced two primary theories of relief. Manumission suit claimants alleged that their masters freed them or one of their ancestors, and freedom suit claimants contended that they could not be enslaved under the applicable law.8 When the United States gained its independence, in most states only Africans or those with African female ancestors could lawfully be enslaved. Many Maryland freedom suits arose, however, because its legislature in 1664 adopted its first law intended to deter “freeborn English women” from marrying “Negro slaves.” This law enslaved “freeborn women” who married “any slave” for the term of their husbands’ lives. It also provided that the children of these marriages were to follow their fathers’ condition, except...