John Marshall and the Constitution
By Edward S. Corwin
A Chronicle of the Supreme Court
Volume 16 of the
Chronicles of America Series
∴
Allen Johnson, Editor
Assistant Editors
Gerhard R. Lomer
Charles W. Jefferys
Abraham Lincoln Edition
New Haven: Yale University Press
Toronto: Glasgow, Brook & Co.
London: Humphrey Milford
Oxford University Press
1920
Copyright, 1919
by Yale University Press
John Marshall and the Constitution
Chapter Chapter Title Page
I. The Establishment Of The National Judiciary 1
II. Marshall's Early Years 25
III. Jefferson's War On The Judiciary 53
IV. The Trial Of Aaron Burr 86
V. The Tenets Of Nationalism 121
VI. The Sanctity Of Contracts 147
VII. The Menace Of State Rights 173
VIII. Among Friends And Neighbors 198
IX. Epilogue 224
Bibliographical Note 233
Index 237
JOHN MARSHALL AND THE CONSTITUTION
∴
CHAPTER I.
The Establishment Of The National Judiciary
The monarch of ancient times mingled the functions of priest and judge.
It is therefore not altogether surprising that even today a judicial
system should be stamped with a certain resemblance to an ecclesiastical
hierarchy. If the Church of the Middle Ages was "an army encamped on the
soil of Christendom, with its outposts everywhere, subject to the most
efficient discipline, animated with a common purpose, every soldier
panoplied with inviolability and armed with the tremendous weapons which
slew the soul," the same words, slightly varied, may be applied to the
Federal Judiciary created by the American Constitution. The Judiciary of
the United States, though numerically not a large body, reaches through
its process every part of the nation; its ascendancy is primarily a
moral one; it is kept in conformity with final authority by the
machinery of appeal; it is "animated with a common purpose"; its members
are "panoplied" with what is practically a life tenure of their posts;
and it is "armed with the tremendous weapons" which slay legislation.
And if the voice of the Church was the voice of God, so the voice of the
Court is the voice of the American people as this is recorded in the
Constitution.
The Hildebrand of American constitutionalism is John Marshall. The
contest carried on by the greatest of the Chief Justices for the
principles today associated with his name is very like that waged by the
greatest of the Popes for the supremacy of the Papacy. Both fought with
intellectual weapons. Both addressed their appeal to the minds and
hearts of men. Both died before the triumph of their respective causes
and amid circumstances of great discouragement. Both worked through and
for great institutions which preceded them and which have survived them.
And, as the achievements of Hildebrand cannot be justly appreciated
without some knowledge of the ecclesiastical system which he did so much
to develop, neither can the career of John Marshall be understood
without some knowledge of the organization of the tribunal through which
he wrought and whose power he did so much to exalt. The first chapter in
the history of John Marshall and his influence upon the laws of the land
must therefore inevitably deal with the historical conditions underlying
the judicial system of which it is the capstone.
The vital defect of the system of government provided by the soon
obsolete Articles of Confederation lay in the fact that it operated not
upon the individual citizens of the United States but upon the States in
their corporate capacities. As a consequence the prescribed duties of
any law passed by Congress in pursuance of powers derived from the
Articles of Confederation could not be enforced. Theoretically, perhaps,
Congress had the right to coerce the States to perform their duties; at
any rate, a Congressional Committee headed by Madison so decided at the
very moment (1781) when the Articles were going into effect. But
practically such a course of coercion, requiring in the end the exercise
of military power, was out of the question. Whence were to come the
forces for military operations against recalcitrant States? From sister
States which had themselves neglected their constitutional duties on
various occasions? The history of the German Empire has demonstrated
that the principle of state coercion is entirely feasible when a single
powerful State dominates the rest of the confederation. But the
Confederation of 1781 possessed no such giant member; it approximated a
union of equals, and in theory it was entirely such. ¹
¹ By the Articles of Confederation Congress itself was made "the last
resort of all disputes and differences ... between two or more States
concerning boundary, jurisdiction, or any other cause whatever." It was
also authorized to appoint "courts for the trial of piracies and
felonies committed on the high seas" and "for receiving and determining
finally appeals in all cases of capture." But even before the Articles
had gone into operation, Congress had, as early as 1779, established a
tribunal for such appeals, the old Court of Appeals in Cases of Capture.
Thus at the very outset, and at a time when the doctrine of state
sovereignty was dominant, the practice of appeals from state courts to a
supreme national tribunal was employed, albeit within a restricted
sphere. Yet it is less easy to admit that the Court of Appeals was, as
has been contended by one distinguished authority, "not simply the
predecessor but one of the origins of the Supreme Court of the United
States." The Supreme Court is the creation of the Constitution itself;
it is the final interpreter of the law in every field of national power;
and its decrees are carried into effect by the force and authority of
the Government of which it is one of the three coördinate branches. That
earlier tribunal, the Court of Appeals in Cases of Capture, was, on the
other hand, a purely legislative creation; its jurisdiction was confined
to a single field, and that of importance only in time of war; and the
enforcement of its decisions rested with the state governments.
In the Federal Convention of 1787 the idea of state coercion required
little discussion; for the members were soon convinced that it involved
an impracticable, illogical, and unjust principle. The prevailing view
was voiced by Oliver Ellsworth before the Connecticut ratifying
convention: "We see how necessary for Union is a coercive principle. No
man pretends to the contrary.... The only question is, shall it be a
coercion of law or a coercion of arms? There is no other possible
alternative. Where will those who oppose a coercion of law come out? ...
A necessary consequence of their principles is a war of the States one
against the other. I am for coercion by law, that coercion which acts
only upon delinquent individuals." If anything, these words somewhat
exaggerate the immunity of the States from direct control by the
National Government, for, as James Madison pointed out in the
Federalist, "in several cases ... they [the States] must be viewed and
proceeded against in their collective capacities." Yet Ellsworth stated
correctly the controlling principle of the new government: it was to
operate upon individuals through laws interpreted and enforced by its
own courts.
A Federal Judiciary was provided for in every plan offered on the floor
of the Federal Convention. There was also a fairly general agreement
among the members on the question of "judicial independence." Indeed,
most of the state constitutions already made the tenure of the principal
judges dependent upon their good behavior, though in some cases judges
were removable, as in England, upon the joint address of the two Houses
of the Legislature. That the Federal judges should be similarly
removable by the President upon the application of the Senate and House
of Representatives was proposed late in the Convention by Dickinson of
Delaware, but the suggestion received the vote of only one State. In the
end it was all but unanimously agreed that the Federal judges should be
removable only upon conviction following impeachment.
But, while the Convention was in accord on this matter, another
question, that of the organization of the new judiciary, evoked the
sharpest disagreement among its members. All believed that there must be
a national Supreme Court to impress upon the national statutes a
construction that should be uniformly binding throughout the country;
but they disagreed upon the question whether there should be inferior
national courts. Rutledge of South Carolina wanted the state courts to
be used as national courts of the first instance and argued that a right
of appeal to the supreme national tribunal would be quite sufficient "to
secure the national rights and uniformity of judgment." But Madison
pointed out that such an arrangement would cause appeals to be
multiplied most oppressively and that, furthermore, it would provide no
remedy for improper verdicts resulting from local prejudices. A
compromise was reached by leaving the question to the discretion of
Congress. The champions of local liberties, however, both at
Philadelphia and in the state conventions continued to the end to urge
that Congress should utilize the state courts as national tribunals of
the first instance. The significance of this plea should be emphasized
because the time was to come when the same interest would argue that for
the Supreme Court to take appeals from the state courts on any account
was a humiliation to the latter and an utter disparagement of State
Rights.
Even more important than the relation of the Supreme Court to the
judicial systems of the States was the question of its relation to the
Constitution as a governing instrument. Though the idea that courts were
entitled to pronounce on the constitutionality of legislative acts had
received countenance in a few dicta in some of the States and perhaps in
one or two decisions, this idea was still at best in 1787 but the germ
of a possible institution. It is not surprising, therefore, that no such
doctrine found place in the resolutions of the Virginia plan which came
before the Convention. By the sixth resolution of this plan the national
legislature was to have the power of negativing all state laws which, in
its opinion, contravened "the Articles of Union, or any treaty
subsisting under the authority of the Union," and by the eighth
resolution "a convenient number of the national judiciary" were to be
associated with the Executive, "with authority to examine every act of
the national legislature before it shall operate, and every act of a
particular legislature before a negative thereon shall be final" and to
impose a qualified veto in either case.
But, as discussion in the Convention proceeded, three principles
obtained clearer and clearer recognition, if not from all its members,
certainly from the great majority of them: first, that the Constitution
is law, in the sense of being enforcible by courts; secondly, that it is
supreme law, with which ordinary legislation must be in harmony to be
valid; and thirdly--a principle deducible from the doctrine of the
separation of powers--that, while the function of making new law belongs
to the legislative branch of the Government, that of expounding the
standing law, of which the Constitution would be part and parcel,
belongs to the Judiciary. The final disposition of the question of
insuring the conformity of ordinary legislation to the Constitution
turned to no small extent on the recognition of these three great
principles.
The proposal to endow Congress with the power to negative state
legislation having been rejected by the Convention, Luther Martin of
Maryland moved that "the legislative acts of the United States made in
virtue and in pursuance of the Articles of Union, and all treaties made
or ratified under the authority of the United States, shall be the
supreme law of the respective States, and the judiciaries of the several
States shall be bound thereby in their decisions, anything in the
respective laws of the individual States to the contrary
notwithstanding." The motion was agreed to without a dissenting voice
and, with some slight changes, became Article VIII of the report of the
Committee of Detail of the 7th of August, which in turn became "the
linch-pin of the Constitution." ¹ Then, on the 27th of August, it was
agreed that "the jurisdiction of the Supreme Court" should "extend to
all cases arising under the laws passed by the Legislature of the United
States," whether, that is, such laws should be in pursuance of the
Constitution or not. The foundation was thus laid for the Supreme Court
to claim the right to review any state decision challenging on
constitutional grounds the validity of any act of Congress. Presently
this foundation was broadened by the substitution of the phrase
"judicial power of the United States" for the phrase "jurisdiction of
the Supreme Court," and also by the insertion of the words "this
Constitution" and "the" before the word "laws" in what ultimately became
Article III of the Constitution. The implications of the phraseology of
this part of the Constitution are therefore significant:
¹ Article VI, paragraph 2.
Section I. The judicial power of the United States shall be vested in
one Supreme Court, and in such inferior courts as the Congress may from
time to time ordain and establish. The judges, both of the Supreme and
inferior courts, shall hold their offices during good behavior, and
shall at stated times receive for their services a compensation which
shall not be diminished during their continuance in office.
Section II. 1. The judicial power shall extend to all cases in law and
equity arising under this Constitution, the laws of the United States,
and treaties made, or which shall be made, under their authority; to all
cases affecting ambassadors, other public ministers, and consuls; to all
cases of admiralty and maritime jurisdiction; to controversies to which
the United States shall be a party; to controversies between two or more
States, between a State and citizens of another State, between citizens
of different States, between citizens of the same State claiming lands
under grants of different States, and between a State, or the citizens
thereof, and foreign states, citizens, or subjects.
Such, then, is the verbal basis of the power of the courts, and
particularly of the Supreme Court, to review the legislation of any
State, with reference to the Constitution, to acts of Congress, or to
treaties of the United States. Nor can there be much doubt that the
members of the Convention were also substantially agreed that the
Supreme Court was endowed with the further right to pass upon the
constitutionality of acts of Congress. The available evidence strictly
contemporaneous with the framing and ratification of the Constitution
shows us seventeen of the fifty-five members of the Convention asserting
the existence of this prerogative in unmistakable terms and only three
using language that can be construed to the contrary. More striking than
that, however, is the fact that these seventeen names include fully
three-fourths of the leaders of the Convention, four of the five members
of the Committee of Detail which drafted the Constitution, and four of
the five members of the Committee of Style which gave the Constitution
its final form. And these were precisely the members who expressed
themselves on all the interesting and vital subjects before the
Convention, because they were its statesmen and articulate members. ¹
¹ The entries under the names of these members in the Index to Max
Farrand's Records of the Federal Convention occupy fully thirty columns,
as compared with fewer than half as many columns under the names of all
remaining members.
No part of the Constitution has realized the hopes of its framers more
brilliantly than has Article III, where the judicial power of the United
States is defined and organized, and no part has shown itself to be more
adaptable to the developing needs of a growing nation. Nor is the reason
obscure: no part came from the hands of the framers in more fragmentary
shape or left more to the discretion of Congress and the Court.
Congress is thus placed under constitutional obligation to establish one
Supreme Court, but the size of that Court is for Congress itself to
determine, as well as whether there shall be any inferior Federal Courts
at all. What, it may be asked, is the significance of the word "shall"
in Section II? Is it merely permissive or is it mandatory? And, in
either event, when does a case arise under the Constitution or the laws
of the United States? Here, too, are questions which are left for
Congress in the first instance and for the Supreme Court in the last.
Further, the Supreme Court is given "original jurisdiction" in certain
specified cases and "appellate jurisdiction" in all others--subject,
however, to "such exceptions and under such regulations as the Congress
shall make." Finally, the whole question of the relation of the national
courts to the state judiciaries, though it is elaborately discussed by
Alexander Hamilton in the Federalist, is left by the Constitution itself
to the practically undirected wisdom of Congress, in the exercise of its
power to pass "all laws which shall be necessary and proper for carrying
into execution" ¹ its own powers and those of the other departments of
the Government.
¹ Article I, section VIII, 18.
Almost the first official act of the Senate of the United States, after
it had perfected its own organization, was the appointment of a
committee "to bring in a bill for organizing the judiciary of the United
States." This committee consisted of eight members, five of whom,
including Oliver Ellsworth, its chairman, had been members of the
Federal Convention. To Ellsworth is to be credited largely the
authorship of the great Judiciary Act of September 24, 1789, the
essential features of which still remain after 130 years in full force
and effect.
This famous measure created a chief justiceship and five associate
justiceships for the Supreme Court; fifteen District Courts, one for
each State of the Union and for each of the two Territories, Kentucky
and Ohio; and, to stand between these, three Circuit Courts consisting
of two Supreme Court justices and the local district judge. The "cases"
and "controversies" comprehended by the Act fall into three groups:
first, those brought to enforce the national laws and treaties, original
jurisdiction of which was assigned to the District Courts; secondly,
controversies between citizens of different States ¹; lastly, cases
brought originally under a state law and in a State Court but finally
coming to involve some claim of right based on the National
Constitution, laws, or treaties. For these the twenty-fifth section of
the Act provided that, where the decision of the highest State Court
competent under the state law to pass upon the case was adverse to the
claim thus set up, an appeal on the issue should lie to the Supreme
Court. This twenty-fifth section received the hearty approval of the
champions of State Rights, though later on it came to be to them an
object of fiercest resentment. In the Senate, as in the Convention, the
artillery of these gentlemen was trained upon the proposed inferior
Federal Judiciary, which they pictured as a sort of Gargantua ready at
any moment "to swallow up the state courts."
¹ Where the national jurisdiction was extended to these in the interest
of providing an impartial tribunal, it was given to the Circuit Courts.
The first nominations for the Supreme Court were sent in by Washington
two days after he had signed the Judiciary Act. As finally constituted,
the original bench consisted of John Jay of New York as Chief Justice,
and of John Rutledge of South Carolina, William Cushing of
Massachusetts, John Blair of Virginia, James Wilson of Pennsylvania, and
James Iredell of North Carolina as Associate Justices. All were known to
be champions of the Constitution, three had been members of the Federal
Convention, four had held high judicial offices in their home States,
and all but Jay were on record as advocates of the principle of judicial
review. Jay was one of the authors of the Federalist, had achieved a
great diplomatic reputation in the negotiations of 1782, and possessed
the political backing of the powerful Livingston family of New York.
The Judiciary Act provided for two terms of court annually, one
commencing the first Monday of February, and the other on the first
Monday of August. On February 2, 1790, the Court opened its doors for
the first time in an upper room of the Exchange in New York City. Up to
the February term of 1793 it had heard but five cases, and until the
accession of Marshall it had decided but fifty-five. The justices were
largely occupied in what one of them described as their "post-boy
duties," that is, in riding their circuits. At first the justices rode
in pairs and were assigned to particular circuits. As a result of this
practice, the Southern justices were forced each year to make two trips
of nearly two thousand miles each and, in order to hold court for two
weeks, often passed two months on the road. In 1792, however, Congress
changed the law to permit the different circuits to be taken in turn and
by single justices, and in the meantime the Court had, in 1791, followed
the rest of the Government to Philadelphia, a rather more central seat.
Then, in 1802, the abolition of the August term eased the burdens of the
justices still more. But of course they still had to put up with bad
roads, bad inns, and bad judicial quarters or sometimes none at all.
Yet that the life of a Supreme Court justice was not altogether one of
discomfort is shown by the following alluring account of the travels of
Justice Cushing on circuit: "He traveled over the whole of the Union,
holding courts in Virginia, the Carolinas, and Georgia. His traveling
equipage was a four-wheeled phaeton, drawn by a pair of horses, which he
drove. It was remarkable for its many ingenious arrangements (all of his
contrivance) for carrying books, choice groceries, and other comforts.
Mrs. Cushing always accompanied him, and generally read aloud while
riding. His faithful servant Prince, a jet-black negro, whose parents
had been slaves in the family and who loved his master with unbounded
affection, followed." ¹ Compared with that of a modern judge always
confronted with a docket of eight or nine hundred cases in arrears,
Justice Cushing's lot was perhaps not so unenviable.
¹ Flanders, The Lives and Times of the Chief-Justices of the Supreme
Court, vol. II, p. 38.
The pioneer work of the Supreme Court in constitutional interpretation
has, for all but special students, fallen into something like obscurity
owing to the luster of Marshall's achievements and to his habit of
deciding cases without much reference to precedent. But these early
labors are by no means insignificant, especially since they pointed the
way to some of Marshall's most striking decisions. In Chisholm vs.
Georgia, ¹ which was decided in 1793, the Court ruled, in the face of an
assurance in the Federalist to the contrary, that an individual might
sue a State; and though this decision was speedily disallowed by
resentful debtor States by the adoption of the Eleventh Amendment, its
underlying premise that, "as to the purposes of the Union, the States
are not sovereign" remained untouched; and three years later the Court
affirmed the supremacy of national treaties over conflicting state laws
and so established a precedent which has never been disturbed. ²
Meantime the Supreme Court was advancing, though with notable caution,
toward an assertion of the right to pass upon the constitutionality of
acts of Congress. Thus in 1792, Congress ordered the judges while on
circuit to pass upon pension claims, their determinations to be
reviewable by the Secretary of the Treasury. In protests which they
filed with the President, the judges stated the dilemma which confronted
them: either the new duty was a judicial one or it was not; if the
latter, they could not perform it, at least not in their capacity as
judges; if the former, then their decisions were not properly reviewable
by an executive officer. Washington promptly sent the protests to
Congress, whereupon some extremists raised the cry of impeachment; but
the majority hastened to amend the Act so as to meet the views of the
judges. ³ Four years later, in the Carriage Tax case, 4 the only
question argued before the Court was that of the validity of a
congressional excise. Yet as late as 1800 we find Justice Samuel Chase
of Maryland, who had succeeded Blair in 1795, expressing skepticism as
to the right of the Court to disallow acts of Congress on the ground of
their unconstitutionality, though at the same time admitting that the
prevailing opinion among bench and bar supported the claim.
¹ 2 Dallas, 419.
² Ware vs. Hylton, 3 ib., 199.
³ See 2 Dallas, 409.
4 Hylton vs. United States, 3 Dallas, 171.
The great lack of the Federal Judiciary during these early years, and it
eventually proved well-nigh fatal, was one of leadership. Jay was a
satisfactory magistrate, but he was not a great force on the Supreme
Bench, partly on account of his peculiarities of temperament and his ill
health, and partly because, even before he resigned in 1795 to run for
Governor in New York, his judicial career had been cut short by an
important diplomatic assignment to England. His successor, Oliver
Ellsworth, also suffered from ill health, and he too was finally
sacrificed on the diplomatic altar by being sent to France in 1799.
During the same interval there were also several resignations among the
associate justices. So, what with its shifting personnel, the lack of
business, and the brief semiannual terms, the Court secured only a
feeble hold on the imagination of the country. It may be thought, no
doubt, that judges anxious to steer clear of politics did not require
leadership in the political sense. But the truth of the matter is that
willy-nilly the Federal Judiciary at this period was bound to enter
politics, and the only question was with what degree of tact and
prudence this should be done. It was to be to the glory of Marshall that
he recognized this fact perfectly and with mingled boldness and caution
grasped the leadership which the circumstances demanded.
The situation at the beginning was precarious enough. While the
Constitution was yet far from having commended itself to the back
country democracy, that is, to the bulk of the American people, the
normal duties of the lower Federal Courts brought the judges into daily
contact with prevalent prejudices and misconceptions in their most
aggravated forms. Between 1790 and 1800 there were two serious uprisings
against the new Government: the Whisky Rebellion of 1794 and Fries's
Rebellion five years later. During the same period the popular ferment
caused by the French Revolution was at its height. Entrusted with the
execution of the laws, the young Judiciary "was necessarily thrust
forward to bear the brunt in the first instance of all the opposition
levied against the federal head," its revenue measures, its commercial
restrictions, its efforts to enforce neutrality and to quell uprisings.
In short, it was the point of attrition between the new system and a
suspicious, excited populace.
Then, to make bad matters worse, Congress in 1798 passed the Sedition
Act. Had political discretion instead of party venom governed the
judges, it is not unlikely that they would have seized the opportunity
presented by this measure to declare it void and by doing so would have
made good their censorship of acts of Congress with the approval of even
the Jeffersonian opposition. Instead, they enforced the Sedition Act,
often with gratuitous rigor, while some of them even entertained
prosecutions under a supposed Common Law of the United States. The
immediate sequel to their action was the claim put forth in the Virginia
and Kentucky Resolutions that the final authority in interpreting the
National Constitution lay with the local legislatures. Before the
principle of judicial review was supported by a single authoritative
decision, it had thus become a partisan issue! ¹
¹ See Herman V. Ames, State Documents on Federal Relations, Nos. 7-15.
A few months later Jefferson was elected President, and the Federalists,
seeing themselves about to lose control of the Executive and Congress,
proceeded to take steps to convert the Judiciary into an avowedly
partisan stronghold. By the Act of February 13, 1801, the number of
associate justiceships was reduced to four, in the hope that the new
Administration might in this way be excluded from the opportunity of
making any appointments to the Supreme Bench, the number of district
judgeships was enlarged by five, and six Circuit Courts were created
which furnished places for sixteen more new judges. When John Adams, the
retiring President, proceeded with the aid of the Federalist majority in
the Senate and of his Secretary of State, John Marshall, to fill up the
new posts with the so-called "midnight judges," ¹ the rage and
consternation of the Republican leaders broke all bounds. The Federal
Judiciary, declared John Randolph, had become "an hospital of decayed
politicians." Others pictured the country as reduced, under the weight
of "supernumerary judges" and hosts of attendant lawyers, to the
condition of Egypt under the Mamelukes. Jefferson's concern went deeper.
"They have retired into the judiciary as a stronghold," he wrote
Dickinson. "There the remains of Federalism are to be preserved and fed
from the Treasury, and from that battery all the works of Republicanism
are to be beaten down and destroyed." The Federal Judiciary, as a
coördinate and independent branch of the Government, was confronted with
a fight for life!
¹ So called because the appointment of some of them was supposed to have
taken place as late as midnight, or later, of March 3-4, 1801. The
supposition, however, was without foundation.
Meanwhile, late in November, 1800, Ellsworth had resigned, and Adams had
begun casting about for his successor. First he turned to Jay, who
declined on the ground that the Court, "under a system so defective,"
would never "obtain the energy, weight, and dignity which were essential
to its affording due support to the National Government, nor acquire the
public confidence and respect which, as the last resort of the justice
of the nation, it should possess." Adams now bethought himself of his
Secretary of State and, without previously consulting him, on January
20, 1801, sent his name to the Senate. A week later the Senate ratified
the nomination, and on the 4th of February Marshall accepted the
appointment. The task despaired of by Jay and abandoned by Ellsworth was
at last in capable hands.
CHAPTER II
Marshall's Early Years
John Marshall was born on September 24, 1755, in Fauquier County,
Virginia. Though like Jefferson he was descended on his mother's side
from the Randolphs of Turkey Island, colonial grandees who were also
progenitors of John Randolph, Edmund Randolph, and Robert E. Lee, his
father, Thomas Marshall, was "a planter of narrow fortune" and modest
lineage and a pioneer. Fauquier was then on the frontier, and a few
years after John was born the family moved still farther westward to a
place called "The Hollow," a small depression on the eastern slope of
the Blue Ridge. The external furnishings of the boy's life were
extremely primitive, a fact which Marshall used later to recall by
relating that his mother and sisters used thorns for buttons and that
hot mush flavored with balm leaf was regarded as a very special dish.
Neighbors of course, were few and far between, but society was not
lacking for all that. As the first of fifteen children, all of whom
reached maturity, John found ample opportunity to cultivate that
affectionate helpfulness and gayety of spirit which in after years even
enemies accounted one of his most notable traits.
Among the various influences which, during the plastic years of boyhood
and youth, went to shape the outlook of the future Chief Justice high
rank must be accorded his pioneer life. It is not merely that the spirit
of the frontier, with its independence of precedent and its audacity of
initiative, breathes through his great constitutional decisions, but
also that in being of the frontier Marshall escaped being something
else. Had he been born in lowland Virginia, he would have imbibed the
intense localism and individualism of the great plantation, and with his
turn of mind might well have filled the rôle of Calhoun instead of that
very different rôle he actually did fill. There was, indeed, one great
planter with whom young Marshall was thrown into occasional contact, and
that was his father's patron and patron saint, Washington. The appeal
made to the lad's imagination by the great Virginian was deep and
abiding. And it goes without saying that the horizons suggested by the
fame of Fort Venango and Fort Duquesne were not those of seaboard
Virginia but of America.
Many are the great men who have owed their debt to a mother's loving
helpfulness and alert understanding. Marshall, on the other hand, was
his father's child. "My father," he was wont to declare in after years,
"was a far abler man than any of his sons. To him I owe the solid
foundations of all my success in life." What were these solid
foundations? One was a superb physical constitution; another was a taste
for intellectual delights; and to the upbuilding of both these in his
son, Thomas Marshall devoted himself with enthusiasm and masculine good
sense, aided on the one hand by a very select library consisting of
Shakespeare, Milton, Dryden, and Pope, and on the other by the ever
fresh invitation of the mountainside to health-giving sports.
Pope was the lad's especial textbook, and we are told that he had
transcribed the whole of the Essay on Man by the time he was twelve and
some of the Moral Essays as well, besides having "committed to memory
many of the most interesting passages of that distinguished poet." The
result is to be partially discerned many years later in certain tricks
of Marshall's style; but indeed the influence of the great moralist must
have penetrated far deeper. The Essay on Man filled, we may surmise,
much the same place in the education of the first generation of American
judges that Herbert Spencer's Social Statics filled in that of the
judges of a later day. The Essay on Man pictures the universe as a
species of constitutional monarchy governed "not by partial but by
general laws"; in "man's imperial race" this beneficent sway expresses
itself in two principles, "self-love to urge, and reason to restrain";
instructed by reason, self-love lies at the basis of all human
institutions, the state, government, laws, and has "found the private in
the public good"; so, on the whole, justice is the inevitable law of
life. "Whatever is, is right." It is interesting to suppose that while
Marshall was committing to memory the complacent lines of the Essay on
Man, his cousin Jefferson may have been deep in the Essay on the Origin
of Inequality.
At the age of fourteen Marshall was placed for a few months under the
tuition of a clergyman named Campbell, who taught him the rudiments of
Latin and introduced him to Livy, Cicero, and Horace. A little later the
great debate over American rights burst forth and became with Marshall,
as with so many promising lads of the time, the decisive factor in
determining his intellectual bent, and he now began reading Blackstone.
The great British orators, however, whose eloquence had so much to do,
for instance, with shaping Webster's genius, came too late to influence
him greatly.
The part which the War of Independence had in shaping the ideas and the
destiny of John Marshall was most important. As the news of Lexington
and Bunker Hill passed the Potomac, he was among the first to spring to
arms. His services at the siege of Norfolk, the battles of Brandywine,
Germantown, and Monmouth, and his share in the rigors of Valley Forge
and in the capture of Stony Point, made him an American before he had
ever had time to become a Virginian. As he himself wrote long
afterwards: "I had grown up at a time when the love of the Union and the
resistance to Great Britain were the inseparable inmates of the same
bosom; ... when the maxim 'United we stand, divided we fall' was the
maxim of every orthodox American. And I had imbibed these sentiments so
thoroughly that they constituted a part of my being. I carried them with
me into the army, where I found myself associated with brave men from
different States, who were risking life and everything valuable in a
common cause believed by all to be most precious, and where I was
confirmed in the habit of considering America as my country and Congress
as my government."
Love of country, however, was not the only quality which soldiering
developed in Marshall. The cheerfulness and courage which illuminated
his patriotism brought him popularity among men. Though but a
lieutenant, he was presently made a deputy judge advocate. In this
position he displayed notable talent in adjusting differences between
officers and men and also became acquainted with Washington's brilliant
young secretary, Alexander Hamilton.
While still in active service in 1780, Marshall attended a course of law
lectures given by George Wythe at William and Mary College. He owed this
opportunity to Jefferson, who was then Governor of the State and who had
obtained the abolition of the chair of divinity at the college and the
introduction of a course in law and another in medicine. Whether the
future Chief Justice was prepared to take full advantage of the
opportunity thus offered is, however, a question. He had just fallen
heels over head in love with Mary Ambler, whom three years later he
married, and his notebook seems to show us that his thoughts were quite
as much upon his sweetheart as upon the lecturer's wisdom.
None the less, as soon as the Courts of Virginia reopened, upon the
capitulation of Cornwallis, Marshall hung out his shingle at Richmond
and began the practice of his profession. The new capital was still
hardly more than an outpost on the frontier, and conditions of living
were rude in the extreme. "The Capitol itself," we are told, "was an
ugly structure--'a mere wooden barn'--on an unlovely site at the foot of
a hill. The private dwellings scattered about were poor, mean, little
wooden houses." "Main Street was still unpaved, deep with dust when dry
and so muddy during a rainy season that wagons sank up to the axles." It
ended in gullies and swamps. Trade, which was still in the hands of the
British merchants, involved for the most part transactions in skins,
furs, ginseng, snakeroot, and "dried rattlesnakes--used to make a viper
broth for consumptive patients." "There was but one church building and
attendance was scanty and infrequent." Not so, however, of Farmicola's
tavern, whither card playing, drinking, and ribaldry drew crowds,
especially when the legislature was in session. ¹
¹ Beveridge, vol. I, pp. 171-73.
But there was one institution of which Richmond could boast, even in
comparison with New York, Boston, or Philadelphia, and that was its Bar.
Randolph, Wickham, Campbell, Call, Pendleton, Wythe--these are names
whose fame still survives wherever the history of the American Bar is
cherished; and it was with their living bearers that young Marshall now
entered into competition. The result is somewhat astonishing at first
consideration, for even by the standards of his own day, when digests,
indices, and the other numerous aids which now ease the path of the
young attorney were generally lacking, his preparation had been slight.
Several circumstances, however, came to his rescue. So soon after the
Revolution British precedents were naturally rather out of favor, while
on the other hand many of the questions which found their way into the
courts were those peculiar to a new country and so were without
applicable precedents for their solution. What was chiefly demanded of
an attorney in this situation was a capacity for attention, the ability
to analyze an opponent's argument, and a discerning eye for fundamental
issues. Competent observers soon made the discovery that young Marshall
possessed all these faculties to a marked degree and, what was just as
important, his modesty made recognition by his elders easy and gracious.
From 1782 until the adoption of the Constitution, Marshall was almost
continuously a member of the Virginia Legislature. He thus became a
witness of that course of policy which throughout this period daily
rendered the state governments more and more "the hope of their enemies,
the despair of their friends." The termination of hostilities against
England had relaxed the already feeble bonds connecting the States.
Congress had powers which were only recommendatory, and its
recommendations were ignored by the local legislatures. The army, unpaid
and frequently in actual distress, was so rapidly losing its morale that
it might easily become a prey to demagogues. The treaties of the new
nation were flouted by every State in the Union. Tariff wars and
conflicting land grants embittered the relations of sister States. The
foreign trade of the country, it was asserted, "was regulated, taxed,
monopolized, and crippled at the pleasure of the maritime powers of
Europe." Burdened with debts which were the legacy of an era of
speculation, a considerable part of the population, especially of the
farmer class, was demanding measures of relief which threatened the
security of contracts. "Laws suspending the collection of debts,
insolvent laws, instalment laws, tender laws, and other expedients of a
like nature, were familiarly adopted or openly and boldly vindicated." ¹
¹ This review of conditions under the later Confederation is taken from
Story's Discourse, which is in turn based, at this point, on Marshall's
Life of Washington and certain letters of his to Story.
From the outset Marshall ranged himself on the side of that party in the
Virginia Legislature which, under the leadership of Madison, demanded
with growing insistence a general and radical constitutional reform
designed at once to strengthen the national power and to curtail state
legislative power. His attitude was determined not only by his sympathy
for the sufferings of his former comrades in arms and by his veneration
for his father and for Washington, who were of the same party, but also
by his military experience, which had rendered the pretensions of state
sovereignty ridiculous in his eyes. Local discontent came to a head in
the autumn of 1786 with the outbreak of Shays's Rebellion in western
Massachusetts. Marshall, along with the great body of public men of the
day, conceived for the movement the gravest alarm, and the more so since
he considered it as the natural culmination of prevailing tendencies. In
a letter to James Wilkinson early in 1787, he wrote: "These violent ...
dissensions in a State I had thought inferior in wisdom and virtue to no
one in our Union, added to the strong tendency which the politics of
many eminent characters among ourselves have to promote private and
public dishonesty, cast a deep shade over that bright prospect which the
Revolution in America and the establishment of our free governments had
opened to the votaries of liberty throughout the globe. I fear, and
there is no opinion more degrading to the dignity of man, that those
have truth on their side who say that man is incapable of governing
himself."
Marshall accordingly championed the adoption of the Constitution of 1787
quite as much because of its provisions for diminishing the legislative
powers of the States in the interest of private rights as because of its
provisions for augmenting the powers of the General Government. His
attitude is revealed, for instance, in the opening words of his first
speech on the floor of the Virginia Convention, to which he had been
chosen a member from Richmond: "Mr. Chairman, I conceive that the object
of the discussion now before us is whether democracy or despotism be
most eligible.... The supporters of the Constitution claim the title of
being firm friends of liberty and the rights of man.... We prefer this
system because we think it a well-regulated democracy.... What are the
favorite maxims of democracy? A strict observance of justice and public
faith.... Would to Heaven that these principles had been observed under
the present government. Had this been the case the friends of liberty
would not be willing now to part with it." The point of view which
Marshall here assumed was obviously the same as that from which Madison,
Hamilton, Wilson, and others on the floor of the Federal Convention had
freely predicted that republican liberty must disappear from the earth
unless the abuses of it practiced in many of the States could be
eliminated.
Marshall's services in behalf of the Constitution in the closely fought
battle for ratification which took place in the Virginia Convention are
only partially disclosed in the pages of Elliot's Debates. He was
already coming to be regarded as one excellent in council as well as in
formal discussion, and his democratic manners and personal popularity
with all classes were a pronounced asset for any cause he chose to
espouse. Marshall's part on the floor of the Convention was, of course,
much less conspicuous than that of either Madison or Randolph, but in
the second rank of the Constitution's defenders, including men like
Corbin, Nicholas, and Pendleton, he stood foremost. His remarks were
naturally shaped first of all to meet the immediate necessities of the
occasion, but now and then they foreshadow views of a more enduring
value. For example, he met a favorite contention of the opposition by
saying that arguments based on the assumption that necessary powers
would be abused were arguments against government in general and "a
recommendation of anarchy." To Henry's despairing cry that the proposed
system lacked checks, he replied: "What has become of his enthusiastic
eulogium of the American spirit? We should find a check and control,
when oppressed, from that source. In this country there is no exclusive
personal stock of interest. The interest of the community is blended and
inseparably connected with that of the individual.... When we consult
the common good, we consult our own." And when Henry argued that a
vigorous union was unnecessary because "we are separated by the sea from
the powers of Europe," Marshall replied: "Sir, the sea makes them
neighbors of us."
It is worthy of note that Marshall gave his greatest attention to the
judiciary article as it appeared in the proposed Constitution. He
pointed out that the principle of judicial independence was here better
safeguarded than in the Constitution of Virginia. He stated in one
breath the principle of judicial review and the doctrine of enumerated
powers. If, said he, Congress "make a law not warranted by any of the
powers enumerated, it would be considered by the judges as an
infringement of the Constitution which they are to guard; they would not
consider such a law as coming within their jurisdiction. They would
declare it void." ¹ On the other hand, Marshall scoffed at the idea that
the citizen of a State might bring an original action against another
State in the Supreme Court. His dissections of Mason's and Henry's
arguments frequently exhibit controversial skill of a high order. From
Henry, indeed, Marshall drew a notable tribute to his talent, which was
at the same time proof of his ability to keep friends with his enemies.
¹ J. Elliot, Debates (Edition of 1836), vol. III, p. 503. As to Bills of
Rights, however, Marshall expressed the opinion that they were meant to
be "merely recommendatory. Were it otherwise, ... many laws which are
found convenient would be unconstitutional." Op. cit., vol. III, p. 509.
On the day the great Judiciary Act became law, Marshall attained his
thirty-fourth year. His stride toward professional and political
prominence was now rapid. At the same time his private interests were
becoming more closely interwoven with his political principles and
personal affiliations, and his talents were maturing. Hitherto his
outlook upon life had been derived largely from older men, but his own
individuality now began to assert itself; his groove in life was taking
final shape.
The best description of Marshall shows him in the prime of his manhood a
few months after his accession to the Supreme Bench. It appears in
William Wirt's celebrated Letters of the British Spy:
The [Chief Justice] of the United States is, in his person, tall,
meager, emaciated; his muscles relaxed, and his joints so loosely
connected, as not only to disqualify him, apparently for any vigorous
exertion of body, but to destroy everything like elegance and harmony in
his air and movements. Indeed, in his whole appearance, and demeanour;
dress, attitudes, gesture; sitting, standing or walking; he is as far
removed from the idolized graces of Lord Chesterfield, as any other
gentleman on earth. To continue the portrait: his head and face are
small in proportion to his height; his complexion swarthy; the muscles
of his face, being relaxed, give him the appearance of a man of fifty
years of age, nor can he be much younger; his countenance has a faithful
expression of great good humour and hilarity; while his black eyes--that
unerring index--possess an irradiating spirit, which proclaims the
imperial powers of the mind that sits enthroned within.
The "British Spy" then describes Marshall's personality as an orator at
the time when he was still practicing at the Virginia bar:
His voice [the description continues] is dry and hard; his attitude, in
his most effective orations, was often extremely awkward, as it was not
unusual for him to stand with his left foot in advance, while all his
gestures proceeded from his right arm, and consisted merely in a
vehement, perpendicular swing of it from about the elevation of his head
to the bar, behind which he was accustomed to stand.... [Nevertheless]
if eloquence may be said to consist in the power of seizing the
attention with irresistible force, and never permitting it to elude the
grasp until the hearer has received the conviction which the speaker
intends, [then] this extraordinary man, without the aid of fancy,
without the advantages of person, voice, attitude, gesture, or any of
the ornaments of an orator, deserves to be considered as one of the most
eloquent men in the world.... He possesses one original, and, almost,
supernatural faculty; the faculty of developing a subject by a single
glance of his mind, and detecting at once, the very point on which every
controversy depends. No matter what the question; though ten times more
knotty than the gnarled oak, the lightning of heaven is not more rapid
nor more resistless, than his astonishing penetration. Nor does the
exercise of it seem to cost him an effort. On the contrary, it is as
easy as vision. I am persuaded that his eyes do not fly over a landscape
and take in its various objects with more promptitude and facility, than
his mind embraces and analyzes the most complex subject.
Possessing while at the bar this intellectual elevation, which enables
him to look down and comprehend the whole ground at once, he determined
immediately and without difficulty, on which side the question might be
most advantageously approached and assailed. In a bad cause his art
consisted in laying his premises so remotely from the point directly in
debate, or else in terms so general and so spacious, that the hearer,
seeing no consequence which could be drawn from them, was just as
willing to admit them as not; but his premises once admitted, the
demonstration, however distant, followed as certainly, as cogently, as
inevitably, as any demonstration in Euclid.
All his eloquence consists in the apparently deep self-conviction, and
emphatic earnestness of his manner, the correspondent simplicity and
energy of his style; the close and logical connexion of his thoughts;
and the easy gradations by which he opens his lights on the attentive
minds of his hearers.
The audience are never permitted to pause for a moment. There is no
stopping to weave garlands of flowers, to hang in festoons, around a
favorite argument. On the contrary, every sentence is progressive; every
idea sheds new light on the subject; the listener is kept perpetually in
that sweetly pleasurable vibration, with which the mind of man always
receives new truths; the dawn advances in easy but unremitting pace; the
subject opens gradually on the view; until, rising in high relief, in
all its native colors and proportions, the argument is consummated by
the conviction of the delighted hearer.
What appeared to Marshall's friends as most likely in his early middle
years to stand in the way of his advancement was his addiction to ease
and to a somewhat excessive conviviality. But it is worth noting that
the charge of conviviality was never repeated after he was appointed
Chief Justice; and as to his unstudious habits, therein perhaps lay one
of the causes contributing to his achievement. Both as attorney and as
judge, he preferred the quest of broad, underlying principles, and, with
plenty of time for recuperation from each exertion, he was able to bring
to each successive task undiminished vitality and unclouded attention.
What the author of the Leviathan remarks of himself may well be repeated
of Marshall--that he made more use of his brains than of his bookshelves
and that, if he had read as much as most men, he would have been as
ignorant as they.
That Marshall was one of the leading members of his profession in
Virginia, the most recent biographical researches unmistakably prove.
"From 1790 until his election to Congress nine years later," Albert J.
Beveridge ¹ writes, "Marshall argued 113 cases decided by the court of
appeals of Virginia.... He appeared during this time in practically
every important cause heard and determined by the supreme tribunal of
the State." Practically all this litigation concerned property rights,
and much of it was exceedingly intricate. Marshall's biographer also
points out the interesting fact that "whenever there was more than one
attorney for the client who retained Marshall, the latter almost
invariably was retained to make the closing argument." He was thus able
to make good any lack of knowledge of the technical issues involved as
well as to bring his great debating powers to bear with the best
advantage.
¹ The Life of John Marshall, vol. II, p. 177.
Meanwhile Marshall was also rising into political prominence. From the
first a supporter of Washington's Administration, he was gradually
thrust into the position of Federalist leader in Virginia. In 1794 he
declined the post of Attorney-General, which Washington had offered him.
In the following year he became involved in the acrimonious struggle
over the Jay Treaty with Great Britain, and both in the Legislature and
before meetings of citizens defended the treaty so aggressively that its
opponents were finally forced to abandon their contention that it was
unconstitutional and to content themselves with a simple denial that it
was expedient. Early in 1796 Marshall made his first appearance before
the Supreme Court, in the case of Ware vs. Hylton. The fame of his
defense of "the British Treaty" during the previous year had preceded
him, and his reception by the Federalist leaders from New York and New
England was notably cordial. His argument before the Court, too, though
it did not in the end prevail, added greatly to his reputation. "His
head," said Rufus King, who heard the argument, "is one of the best
organized of any one that I have known."
Either in 1793 or early in the following year, Marshall participated in
a business transaction which, though it did not impart to his political
and constitutional views their original bent, yet must have operated
more or less to confirm his opinions. A syndicate composed of Marshall,
one of his brothers, and two other gentlemen, purchased from the British
heirs what remained of the great Fairfax estate in the Northern Neck, a
tract "embracing over 160,000 acres of the best land in Virginia." By an
Act passed during the Revolution, Virginia had decreed the confiscation
of all lands held by British subjects; and though the State had never
prosecuted the forfeiture of this particular estate, she was always
threatening to do so. Marshall's investment thus came to occupy for many
years a precarious legal footing which, it may be surmised, did not a
little to keep alert his natural sympathy for all victims of legislative
oppression. Moreover the business relation which he formed with Robert
Morris in financing the investment brought him into personal contact for
the first time with the interests behind Hamilton's financial program,
the constitutionality of which he had already defended on the hustings.
It was due also to this business venture that Marshall was at last
persuaded to break through his rule of declining office and to accept
appointment in 1797, together with Pinckney and Gerry, on the famous
"X.Y.Z." mission to France. From this single year's employment he
obtained nearly $20,000, which, says his biographer, "over and above his
expenses," was "three times his annual earnings at the bar"; and the
money came just in the nick of time to save the Fairfax investment, for
Morris was now bankrupt and in jail. But not less important as a result
of his services was the enhanced reputation which Marshall's
correspondence with Talleyrand brought him. His return to Philadelphia
was a popular triumph, and even Jefferson, temporarily discomfited by
the "X.Y.Z." disclosures, found it discreet to go through the form of
paying him court--whereby hangs a tale. Jefferson called at Marshall's
tavern. Marshall was out. Jefferson thereupon left a card deploring how
"unlucky" he had been. Commenting years afterwards upon the occurrence,
Marshall remarked that this was one time at least when Jefferson came
near telling the truth.
Through the warm insistence of Washington, Marshall was finally
persuaded in the spring of 1799 to stand as Federalist candidate for
Congress in the Richmond district. The expression of his views at this
time is significant. A correspondent of an Alexandria newspaper signing
himself "Freeholder" put to him a number of questions intended to call
forth Marshall's opinions on the issues of the day. In answering a query
as to whether he favored an alliance with Great Britain, the candidate
declared that the whole of his "politics respecting foreign nations" was
"reducible to this single position.... Commercial intercourse with all,
but political ties with none." But a more pressing issue on which the
public wished information was that furnished by the Alien and Sedition
laws, which Marshall had originally criticized on grounds both of
expediency and of constitutionality. Now, however, he defended these
measures on constitutional grounds, taking the latitudinarian position
that "powers necessary for the attainment of all objects which are
general in their nature, which interest all America ... would be
naturally vested in the Government of the whole," but he declared
himself strongly opposed to their renewal. At the same time he denounced
the Virginia Resolutions as calculated "to sap the foundations of our
Union."
The election was held late in April, under conditions which must have
added greatly to popular interest. Following the custom in Virginia, the
voter, instead of casting a ballot, merely declared his preference in
the presence of the candidates, the election officials, and the
assembled multitude. In the intensity of the struggle no voter, halt,
lame, or blind, was overlooked; and a barrel of whisky near at hand lent
further zest to the occasion. Time and again the vote in the district
was a tie, and as a result frequent personal encounters took place
between aroused partisans. Marshall's election by a narrow majority in a
borough which was strongly pro-Jeffersonian was due, indeed, not to his
principles but to his personal popularity and to the support which he
received from Patrick Henry, the former Governor of the State.
The most notable event of his brief stay in Congress was his successful
defense of President Adams's action in handing over to the British
authorities, in conformity with the twenty-seventh article of the Jay
treaty, Jonathan Robins, who was alleged to be a fugitive from justice.
Adams's critics charged him with having usurped a judicial function.
"The President," said Marshall in reply, "is sole organ of the nation in
its external relations, and its sole representative with foreign
nations. Of consequence, the demand of a foreign nation can only be made
on him. He possesses the whole executive power. He holds and directs the
force of the nation. Of consequence, any act to be performed by the
force of the nation is to be performed through him. He is charged to
execute the laws. A treaty is declared to be a law. He must then execute
a treaty where he, and he alone, possesses the means of executing it."
This is one of the few speeches ever uttered on the floor of Congress
which demonstrably made votes. Gallatin, who had been set to answer
Marshall, threw up his brief; and the resolutions against the President
were defeated by a House hostile to him.
Marshall's course in Congress was characterized throughout by
independence of character, moderation of views, and level good sense, of
which his various congressional activities afford abundant evidence.
Though he had himself been one of the "X.Y.Z." mission, Marshall now
warmly supported Adams's policy of renewing diplomatic relations with
France. He took his political life in his hands to register a vote
against the Sedition Act, a proposal to repeal which was brought before
the House. He foiled a scheme which his party associates had devised, in
view of the approaching presidential election, to transfer to a
congressional committee the final authority in canvassing the electoral
vote--a plan all too likely to precipitate civil war. His Federalist
brethren of the extreme Hamiltonian type quite resented the frequency
with which he was wont to kick over the party traces. "He is disposed,
"wrote Sedgwick, the Speaker, "to express great respect for the
sovereign people and to quote their opinions as an evidence of truth,"
which "is of all things the most destructive of personal independence
and of that weight of character which a great man ought to possess." ¹
¹ Letter from Sedgwick to King, May 11, 1800. Life and Correspondence of
Rufus King, vol. III, pp. 236-7.
Marshall had now come to be practically indispensable to the isolated
President, at whose most earnest insistence he entered the Cabinet as
Secretary of State, though he had previously declined to become
Secretary of War. The presidential campaign was the engrossing interest
of the year, and as it spread its "havoc of virulence" throughout the
country, Federalists of both factions seemed to turn to Marshall in the
hope that, by some miracle of conciliation, he could save the day. The
hope proved groundless, however, and all that was ultimately left the
party which had founded the Government was to choose a President from
the rival leaders of the opposition. Of these Marshall preferred Burr,
because, as he explained, he knew Jefferson's principles better. Besides
having foreign prejudices, Mr. Jefferson, he continued, "appears to me
to be a man who will embody himself with the House of Representatives,
and by weakening the office of President, he will increase his personal
power." Better political prophecy has, indeed, rarely been penned.
Deferring nevertheless to Hamilton's insistence--and, as events were to
prove, to his superior wisdom--Marshall kept aloof from the fight in the
House, and his implacable foe was elected.
Marshall was already one of the eminent men of the country when Adams,
without consulting him, nominated him for Chief Justice. He stood at the
head of the Virginia bar; he was the most generally trusted leader of
his party; he already had a national reputation as an interpreter of the
Constitution. Yet his appointment as Chief Justice aroused criticism
even among his party friends. Their doubt did not touch his intellectual
attainments, but in their opinion his political moderation, his
essential democracy, his personal amiability, all counted against him.
"He is," wrote Sedgwick, "a man of very affectionate disposition, of
great simplicity of manners, and honest and honorable in all his
conduct. He is attached to pleasures, with convivial habits strongly
fixed. He is indolent therefore. He has a strong attachment to
popularity but is indisposed to sacrifice to it his integrity; hence he
is disposed on all popular subjects to feel the public pulse, and hence
results indecision and an expression of doubt." ¹
¹ Op. cit.
It was perhaps fortunate for the Federal Judiciary, of which he was now
to take command, that John Marshall was on occasion "disposed ... to
feel the public pulse." A headstrong pilot might speedily have dashed
his craft on the rocks; a timid one would have abandoned his course; but
Marshall did neither. The better answer to Sedgwick's fears was given in
1805 when John Randolph declared that Marshall's "real worth was never
known until he was appointed Chief Justice." And Sedgwick is further
confuted by the portraits of the Chief Justice, which, with all their
diversity, are in accord on that stubborn chin, that firm placid mouth,
that steady, benignant gaze, so capable of putting attorneys out of
countenance when they had to face it overlong. Here are the lineaments
of self-confidence unmarred by vanity, of dignity without condescension,
of tenacity untouched by fanaticism, and above all, of an easy
conscience and unruffled serenity. It required the lodestone of a great
and thoroughly congenial responsibility to bring to light Marshall's
real metal.