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72 Did the First Justice Harlan Have a Black Brother? JAMES w. GORDON On September 18,1848, James Harlan, father of future Supreme Court Justice John Marshall Harlan, appeared in the Franklin County Court for the purpose of freeing his mulatto slave, Robert Harlan. This appearance formalized Robert's free status and exposed a remarkable link between this talented mulatto and his prominent lawyer-politician sponsor. This event would have little historical significance but for Robert Harlan's being no ordinary slave. Born in 1816, and raised in James Harlan's household, blue-eyed, lightskinned Robert Harlan had been treated by James Harlan more like a member of the family than like a slave. Robert was given an informal education and unusual opportunities to make money and to travel. While still a slave in the 1840s, he was permitted sufficient freedom to have his own businesses, first in Harrodsburg, Kentucky, and then later in Lexington , Kentucky. More remarkably still, he was permitted to hold himself out to the community as a free man of color at least as early as 1840, not only with James Harlan's knowledge, but apparently with his consent. After making a fortune in California during the Gold Rush, Robert moved tb Cincinnati in 1850, where he invested his money in real estate and a photography business. In the years that followed, he became a member of the Northern black elite, and, in the period after 1870, established himself as one of the most important black Republican leaders in Ohio. Although a humane master, James Harlan's treatment of Robert was paradoxical. James' tax records show that he bought and sold slaves throughout his life. The slave census of 1850 lists fourteen slaves in James Harlan's household, ranging in age from three months to seventy years. The census for 1860 lists twelve slaves ranging in age from one to fifty-three years. James neither routinely educated nor often emancipated his slaves, although his ambivalence about the "peculiar institution" was well enough known to become a political liability in Kentucky, a state which was firmly committed to the preservation of slavery. What about Robert Harlan was so special as to lead to such exceptional treatment by James? In the view of two scholars, the peculiarity of James Harlan's relationship with Robert Harlan is easily explained. Robert Harlan, they assert, was James Harlan's son. If true, this means that another of James' sons, the first Justice John Marshall Harlan, had a black half-brother. When James emancipated Robert, John Harlan was fifteen years old. Thereafter, James and Robert continued to have contacts. After James' death in 1863, John and Robert re15 W. NEW ENG. L. REV. 159 (1993). Originally published in the Western New England Law Review. Reprinted by permission. Copyrighted Material Did the First Justice Harlan Have a Black Brother? 445 mained in touch. Robert was an anomalous feature of John's childhood in slaveholding Kentucky and remained a part of his perception of blacks as an adult. John deeply loved and respected his father, James. He lived in his father's house until after his own marriage. James taught John law and politics. In both arenas, father and son were partners and seem to have confided freely in one another. James remained the most important influence in John's life until the older man died in 1863, when John was thirty years old. James Harlan's ambivalent, but generally negative, feelings about slavery surely influenced John's views on the subject. But even more importantly, James' peculiar relationship with Robert during John's youth, and the ongoing contacts between James, John, and Robert after Robert's emancipation, must have affected John'S attitudes toward blacks. Robert was smart and ambitious, but lived his life in the twilight between two worlds, one black, the other white. Never completely at home in either, Robert's lifelong experience of the significance of the color line became, vicariously, a part of John's. Robert was also a continuing example of something John Harlan could not later, as a Supreme Court Justice, bring himself to deny-the humanity of blacks, and the profound unfairness of their treatment by a racist America. Given his connection to Robert, Justice John Harlan's progressive views on race, views which he repeatedly articulated in his famous dissents as an Associate Justice of the United States Supreme Court, become more comprehensible. Indeed, it is reasonable to assume that we will never understand fully...


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