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The Riverside Biographical Series
NUMBER 7
JOHN MARSHALL
BY
JAMES BRADLEY THAYER
[Illustration: portrait of J Marshall]
JOHN MARSHALL
BY
JAMES BRADLEY THAYER
BOSTON AND NEW YORK
HOUGHTON, MIFFLIN AND COMPANY
The Riverside Press, Cambridge
1901
COPYRIGHT, 1901, BY JAMES BRADLEY THAYER
ALL RIGHTS RESERVED
PREFATORY NOTE
The writer has drawn with entire freedom from an address delivered by
him at Cambridge on February 4, 1901, before the Harvard Law School and
the Bar Association of the City of Boston, and from an article on John
Marshall in the Atlantic Monthly for March, 1901.
J. B. T.
CAMBRIDGE, March 30, 1901.
CONTENTS
CHAP. PAGE
I. HIS LIFE BEFORE BECOMING CHIEF JUSTICE;
HIS PERSONAL CHARACTERISTICS 1
II. ARGUMENTS AND SPEECHES; LIFE OF
WASHINGTON; RELATIONS WITH JEFFERSON 39
III. THE BEGINNINGS OF THE CHIEF JUSTICE’S
CAREER; AMERICAN CONSTITUTIONAL
LAW; MARBURY V. MADISON 54
IV. MARSHALL’S CONSTITUTIONAL OPINIONS 82
V. THE WORKING OF OUR SYSTEM OF CONSTITUTIONAL
LAW 102
VI. LETTERS OF MARSHALL 111
VII. MARSHALL AS A CITIZEN AND A NEIGHBOR 123
VIII. HIS LAST DAYS 147
_The portrait is from a miniature by St. Mémin._
JOHN MARSHALL
CHAPTER I
HIS LIFE BEFORE BECOMING CHIEF JUSTICE; HIS PERSONAL CHARACTERISTICS
In beginning his “Life of Washington,” Chief Justice Marshall states
that Washington was born in 1732, “near the banks of the Potowmac,” in
Westmoreland County, Virginia; mentions his employment by Lord Fairfax,
the proprietor of the Northern Neck, as surveyor of his estates in the
western part of that region; and adds that, in the performance of these
duties, “he acquired that information respecting vacant lands, and
formed those opinions concerning their future value, which afterwards
contributed greatly to the increase of his private fortune.”
Thomas Marshall, the father of the Chief Justice, two years older than
Washington, was also born in Westmoreland County, was a schoolmate of
Washington, served with him both as surveyor of the Fairfax estates, and
soon afterwards, as an officer in the French and Indian wars; and he,
too, as time passed, found like advantage from his experience as a
surveyor.
In 1753, Thomas Marshall was made agent of Lord Fairfax in the
management of his estates. In the next year, he married Mary Isham
Keith, daughter of a Scotch clergyman, whose wife was a descendant of
William Randolph, of Turkey Island, the ancestor of the famous Virginia
family of that name. Their son, John Marshall, the oldest of fifteen
children, was born on September 24, 1755, in what was afterwards
Fauquier County, at a little settlement then known as Germantown,--now
Midland, on the Southern Railroad, a few miles south of Manassas. That
was the year of Braddock’s defeat, and Thomas Marshall, like Washington,
was in the service, as an officer.
In Marshall’s early childhood, his father’s household, situated in a
frontier county, must have been agitated with the dreadful rumors,
anxieties, and terrors of the troubles with the French and Indians. “So
late,” he tells us in the “Life of Washington,” “as the year 1756, the
Blue Ridge was the northwestern frontier; and [Virginia] found immense
difficulty in completing a single regiment to protect the inhabitants
from the horrors of the scalping-knife, and the still greater horrors of
being led into captivity by savages who added terrors to death by the
manner of inflicting it.” It was not until two years later that the
capture of Fort Duquesne relieved Virginia from the frightful ravages
that laid waste the region just west of the Blue Ridge.
When John Marshall was ten years old or more, his father left the level
country and poor soil of eastern Fauquier, for the higher and more
fertile region in the western part of the county, just under the Blue
Ridge. At Midland all they can show you now, relating to Marshall, is a
small, rude heap of bricks and rubbish,--what is left of the house
where he was born; and children on the farm reach out to you a handful
of the bullets with which that sacred spot and the whole region were
thickly sown, before a generation had passed, after his death.
Marshall’s education was got from his father, from such teachers as the
neighborhood furnished, and, for about a year, at a school in
Westmoreland County, where his father and George Washington had
attended, and where James Monroe was his own schoolmate. But most he
owed to his father,--a man of good stock, of enterprise, experience,
strong character and sense, himself of no mean education,--who,
personally, took great pains with the training of his children. Marshall
admired his father, and declared him to be a far abler man than any of
his sons. From him and the teachers provided for him his son got a good
knowledge of English history, literature, and poetry, and a fair
acquaintance with the classics.
All Marshall’s later youth was passed in the mountain region of
Fauquier County, under the Blue Ridge. Judge Story declared that it was
to the hardy, athletic habits of his youth among the mountains,
operating, we may well conjecture, upon a happy physical inheritance,
“that he probably owed that robust and vigorous constitution which
carried him almost to the close of his life with the freshness and
firmness of manhood.”
The house that Marshall’s father built at Oakhill is still standing, an
unpretending, small, frame building, having connected with it now, as a
part of it, another house built by Marshall’s son Thomas. At one time
the farm comprised an estate of six thousand acres.[1] Since 1865 it has
passed out of the hands of the family. It is beautifully placed on high,
rolling ground, looking over a great stretch of fertile country, and
along the chain of the Blue Ridge, close by. To this region, where his
children and kindred lived, about a hundred miles from Richmond,
Marshall delighted to resort in the summer, all his life long. In the
autumn of 1807, after the Burr trial, he writes to a friend, “The day
after the commitment of Colonel Burr for a misdemeanor, I galloped to
the mountains.” “I am on the wing,” he tells Judge Story in 1828, “for
my friends in the upper country, where I shall find rest and dear
friends, occupied more with their farms than with party politics.”
When Marshall was about eighteen years old he began to study Blackstone;
but he quickly dropped it, for the troubles with Great Britain
thickened, and, like his neighbors, he prepared for fighting.
He seems to have found a copy of Blackstone in his father’s house, as he
had found there much other sterling English literature. It was then a
new book, but already famous. Published in England in 1765-69, a
thousand copies had been taken in this country;[2] and just now the
first American edition was out (Philadelphia, 1771-72), in which the
list of subscribers, headed by the name of “John Adams, barrister at
law, Boston,” had also that of “Captain Thomas Marshall, Clerk of
Dunmore County.” Dunmore County, now Shenandoah, was then a very new
county, just over the Blue Ridge from Fauquier; and it is believed that
there was but one Captain Thomas Marshall in those parts.
The earliest personal description of Marshall that we have belongs to
this period. It is preserved in Horace Binney’s admirable address at
Philadelphia, after Marshall’s death. He gives it from the pen of an
eyewitness, a “venerable kinsman” of Marshall. News had come, in May,
1775, of the fighting at Concord and Lexington. The account shows us the
youth, as lieutenant, drilling a company of soldiers in Fauquier
County:--
“He was about six feet high, straight, and rather slender, of dark
complexion, showing little if any rosy red, yet good health, the outline
of the face nearly a circle, and within that, eyes dark to
blackness,[3] strong and penetrating, beaming with intelligence and good
nature; an upright forehead, rather low, was terminated in a horizontal
line by a mass of raven-black hair, of unusual thickness and strength.
The features of the face were in harmony with this outline, and the
temples fully developed. The result of this combination was interesting
and very agreeable. The body and limbs indicated agility rather than
strength, in which, however, he was by no means deficient. He wore a
purple or pale blue hunting-shirt, and trousers of the same material
fringed with white. A round black hat, mounted with the buck’s tail for
a cockade, crowned the figure and the man. He went through the manual
exercise by word and motion, deliberately pronounced and performed in
the presence of the company, before he required the men to imitate him;
and then proceeded to exercise them with the most perfect temper....
“After a few lessons the company were dismissed, and informed that if
they wished to hear more about the war, and would form a circle about
him, he would tell them what he understood about it. The circle was
formed, and he addressed the company for something like an hour. He then
challenged an acquaintance to a game of quoits, and they closed the day
with foot-races and other athletic exercises, at which there was no
betting.”
“This,” adds Mr. Binney, “is a portrait, to which in simplicity, gayety
of heart, and manliness of spirit, in everything but the symbols of the
youthful soldier, and one or two of those lineaments which the hand of
time, however gentle, changes and perhaps improves, he never lost his
resemblance.”
Marshall accompanied his father to the war as a lieutenant, and in a
year or two became a captain. In leaving the father here, it may be said
that three of his sons were with him in the war, and that he himself
served with gallantry and distinction as a colonel. In 1780, he was at
the South with General Lincoln, and being included in the surrender of
that officer and on parole, visited Kentucky, not yet a State. After a
few years he removed there with the younger part of his family, leaving
Oakhill, as it seems, in the hands of his son John. He died in Kentucky
in 1806, having survived to witness the successive honors of his son
culminate in his becoming Chief Justice of the United States.[4]
It was in the autumn of 1775 that Marshall, as lieutenant in a regiment
of minutemen, of which his father was major, marched down through the
country to the seaboard to resist Lord Dunmore’s aggressions. They were
clothed, we are told, in green home-spun hunting-shirts, having the
words “Liberty or Death” in large letters on the breast, with bucks’
tails in their hats, and tomahawks and scalping-knives in their belts.
The enemy at Norfolk feared, it is said, for their scalps, but they lost
none.[5]
He was thus in the first fighting in Virginia, in the fall of 1775, at
Norfolk; afterwards he served in New Jersey, Pennsylvania, and New York;
and again in Virginia toward the end of the war. He was at Valley Forge,
in the fighting at the Brandywine, Germantown, Monmouth, Stony Point,
and Paulus Hook, between 1776 and 1779. He served often as judge
advocate, and in this way was brought into personal relations with
Washington and Hamilton. A fellow officer and messmate describes him,
during the dreadful winter at Valley Forge, as neither discouraged nor
disturbed by anything, content with whatever turned up, and cheering
everybody by his exuberance of spirits and “his inexhaustible fund of
anecdote.” He was “idolized by the soldiers and his brother officers.”
President Quincy gives us a glimpse of him at this period, as he heard
him described at a dinner with John Randolph and a large company of
Virginians and other Southern gentlemen. They were talking of Marshall’s
early life and his athletic powers. “It was said in them that he
surpassed any man in the army; that when the soldiers were idle at their
quarters, it was usual for the officers to engage in matches of quoits,
or in jumping and racing; that he would throw a quoit farther, and beat
at a race any other; that he was the only man who, with a running jump,
could clear a stick laid on the heads of two men as tall as himself. On
one occasion he ran in his stocking feet with a comrade. His mother, in
knitting his stockings, had the legs of blue yarn and the heels of
white. This circumstance, combined with his uniform success in the race,
led the soldiers, who were always present at these races, to give him
the sobriquet of ‘Silver-Heels,’ the name by which he was generally
known among them.”
Toward the end of 1779, owing to the disbanding of Virginia troops at
the end of their term of service, he was left without a command, and
went to Virginia to await the action of the legislature as to raising
new troops. It was a fortunate visit; for at Yorktown he met the young
girl who, two or three years later, was to become his wife; and he was
also able to improve his leisure by attending, for a few months in the
early part of 1780, two courses of lectures at the college, on law and
natural philosophy. This was all of college or university that he ever
saw; but later, from several of them, he received their highest honors.
In 1802 the college of New Jersey (Princeton, where his oldest son,
Thomas, was to graduate in 1803), in 1806, Harvard, and in 1815, the
University of Pennsylvania, made him doctor of laws.[6] Marshall’s
opportunity for studying law, under George Wythe, at William and Mary
College, seems to have been owing to a change in the curriculum, made,
just at that time, at the instance of Jefferson, governor of the State,
and, in that capacity, visitor of the college. The chair of divinity had
just been abolished, and one of law and police, and another of medicine,
were substituted. On December 29, 1779, the faculty voted that, “for the
encouragement of science, a student, on paying annually 1000 pounds of
tobacco, shall be entitled to attend any school of the following
professors, viz.: of Law and Police; of Natural Philosophy and
Mathematics,” etc. Marshall chose the two courses above named; he must
have been one of the very first to avail himself of this new privilege.
He remained only one term. In view of what was to happen by and by, it
is interesting to observe that this opportunity for education in law
came through the agency of Thomas Jefferson.
The records of the Phi Beta Kappa Society at William and Mary College,
where that now famous society had originated less than a year and a half
before, show that on the 18th of May, 1780, “Captain John Marshall,
being recommended as a gentleman who would make a worthy member of the
society, was balloted for and received;” and three days later he was
appointed, with others, “to declaim the question whether any form of
government is more favorable to public virtue than a Commonwealth.”
Bushrod Washington and other well-known names are found among his
associates in this chapter, which has been well called “an admirable
nursery of patriots and statesmen.”
It was in the summer of 1780 that Marshall was licensed to practice law.
During this visit to Virginia, as I have said, he met the beautiful
little lady, fourteen years old, who became his wife at the age of
sixteen, was to be the mother of his ten children,[7] and was to receive
from him the most entire devotion until the day of her death in 1831.
Some letters of her older sister, Mrs. Carrington, written to another
sister, have lately been printed, which give us a glimpse of Captain
Marshall in his twenty-fifth year. These ladies were the daughters of
Jaquelin Ambler, formerly collector of customs at Yorktown, and then
treasurer of the colony, and living in that town, next door to the
family of Colonel Marshall. Their mother was that Rebecca Burwell, for
whom, under the name of “Belinda,” Jefferson had languished, in his
youthful correspondence of some twenty years before. The girls had often
heard the captain’s letters to his family, and had the highest
expectations when they learned that he was coming home from the war.
They were to meet him first at a ball, and were contending for the prize
beforehand. Mary, the youngest, carried it off. “At the first
introduction,” writes her sister, who was but one year older, “he
became devoted to her.” “For my own part,” she adds, “I felt not the
smallest wish to contest the prize with her.... She, with a glance,
divined his character, ... while I, expecting an Adonis, lost all desire
of becoming agreeable in his eyes when I beheld his awkward, unpolished
manner and total negligence of person.” “How trivial now seem all such
objections!” she exclaims, writing in 1810, and going on to speak with
the utmost admiration of his relations to herself and all her family,
and above all, to his wife. “His exemplary tenderness to our unfortunate
sister is without parallel. With a delicacy of frame and feeling that
baffles all description, she became, early after her marriage, a prey to
extreme nervous affection, which, more or less, has embittered her
comfort through her whole life; but this has only seemed to increase his
care and tenderness, and he is, as you know, as entirely devoted as at
the moment of their first being married. Always and under every
circumstance an enthusiast in love, I have very lately heard him
declare that he looked with astonishment at the present race of lovers,
so totally unlike what he had been himself. His never-failing
cheerfulness and good humor are a perpetual source of delight to all
connected with him, and, I have not a doubt, have been the means of
prolonging the life of her he is so tenderly devoted to.”
“He was her devoted lover to the very end of her life,” another member
of his family connection has said. And Judge Story, in speaking of him
after his wife’s death, described him as “the most extraordinary man I
ever saw for the depth and tenderness of his feelings.”
A little touch of his manner to his wife is seen in a letter, which is
in print, written to her from the city of Washington, on February 23,
1825, in his seventieth year. He had received an injury to his knee,
about which Mrs. Marshall was anxious. “I shall be out,” he writes, “in
a few days. All the ladies of the secretaries have been to see me, some
more than once, and have brought me more jelly than I could eat, and
many other things. I thank them, and stick to my barley broth. Still I
have lots of time on my hands. How do you think I beguile it? I am
almost tempted to leave you to guess, until I write again. You must know
that I begin with the ball at York, our splendid assembly at the Palace
in Williamsburg, my visit to Richmond for a fortnight, my return to the
field, and the very welcome reception you gave me on my arrival at
Dover, our little tiffs and makings-up, my feelings when Major Dick[8]
was courting you, my trip to the Cottage [the Ambler home in Hanover
County, where the marriage took place],[9]--the thousand little
incidents, deeply affecting, in turn.”
This “ball at York” was the one of which Mrs. Carrington wrote; and of
the “assembly at the Palace” she also gave an account, remarking that
“Marshall was devoted to my sister.”
Miss Martineau, who saw him the year before he died, speaks with great
emphasis of what she calls his “reverence” and his affectionate respect
for women. There were many signs of this all through his life. Even in
the grave and too monotonous course of his “Life of Washington,” one
comes now and then upon a little gleam of this sort, that lights up the
page; as when he speaks of Washington’s engagement to Mrs. Custis, a
lady “who to a large fortune and a fine person added those amiable
accomplishments which ... fill with silent but unceasing felicity the
quiet scenes of private life.” When he is returning from France, in
1798, he writes gayly back from Bordeaux to the Secretary of Legation at
Paris: “Present me to my friends in Paris; and have the goodness to say
to Madame Vilette, in my name and in the handsomest manner, everything
which respectful friendship can dictate. When you have done that, you
will have rendered not quite half justice to my sentiments.” “He was a
man,” said Judge Story, “of deep sensibility and tenderness; ...
whatever may be his fame in the eyes of the world, that which, in a just
sense, was his brightest glory was the purity, affectionateness,
liberality, and devotedness of his domestic life.”
Marshall left the army in 1781, when most of the fighting in Virginia
was over; and began practice in Fauquier County when the courts were
opened, after Cornwallis’s surrender, in October of that year.
Among his neighbors he was always a favorite. In the spring of 1782 he
was elected to the Assembly, and in the autumn to the important office
of member of the “Privy Council, or Council of State,” consisting of
eight persons chosen by joint ballot of the two houses of the Assembly.
“Young Mr. Marshall,” wrote Edmund Pendleton, presiding judge of the
Court of Appeals, to Madison, in November of that year, “is elected a
councilor.... He is clever, but I think too young for that department,
which he should rather have earned, as a retirement and reward, by ten
or twelve years of hard service.” But, whether young or old, the people
were forever forcing him into public life. Eight times he was sent to
the Assembly; in 1788 to the Federal Convention of Virginia, and in 1798
to Congress.
Unwelcome as it was to him, almost always, to have his brilliant and
congenial place and prospects at the bar thus interfered with, we can
see now what an admirable preparation all this was for the great
station, which, a little later, to the endless benefit of his country,
he was destined to fill. What drove him into office so often was, in a
great degree, that delightful and remarkable combination of qualities
which made everybody love and trust him, even his political adversaries,
so that he could be chosen when no one else of his party was available.
In this way, happily for his country, he was led to consider, early and
deeply, those difficult problems of government that distressed the
country in the dark period after the close of the war, and during the
first dozen years of the Federal Constitution.
As regards the effect of his earlier experience in enlarging the circle
of a patriot’s thoughts and affections, he himself has said: “I am
disposed to ascribe my devotion to the Union, and to a government
competent to its preservation, at least as much to casual circumstances
as to judgment. I had grown up at a time ... 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; ... and where I was confirmed
in the habit of considering America as my country and Congress as my
government.” It was this confirmed “habit of considering America as my
country,” communicated by him to his countrymen, which enabled them to
carry through the great struggle of forty years ago, and to save for us
all, North and South, the inestimable treasure of the Union.
After Marshall’s marriage, in January, 1783, he made Richmond his home
for the rest of his life. It was still a little town, but it had lately
become the capital of the State, and the strongest men at the bar
gradually gathered there. Marshall met them all. One has only to look at
the law reports of Call and Washington to see the place that he won. He
is found in most of the important cases. In his time no man’s name
occurs oftener, probably none so often.
The earliest case in which the printed reports show his name is that of
Hite _v._ Fairfax (4 Call’s Reports, 42), in May, 1786, and his argument
seems to be fully reported. It was a very important case, and Marshall
represented tenants of Lord Fairfax. There were conflicting grants on
the famous “Northern Neck” of Virginia, an extensive region given by the
crown to Lord Fairfax’s ancestor, whose boundaries had been in dispute.
It comprised the land between the Potomac and the Rappahannock, “within
the heads of the rivers ... the courses of the said rivers, as they are
commonly called or known by the inhabitants and descriptions of those
parts, and Chesapeake Bay, together with the rivers themselves and all
the islands within the banks of the rivers.” This description was
finally admitted by the crown (in 1745) to include all the land between
the head springs of the Potomac and those of the south branch of the
Rappahannock. Bishop Meade[10] describes it as the region which,
beginning on the Chesapeake Bay, lies between the Potomac and
Rappahannock rivers, and crossing the Blue Ridge, or passing through it
with the Potomac at Harper’s Ferry, extends with that river to the heads
thereof in the Alleghany Mountains, and thence by a straight line
crosses the North Mountain and Blue Ridge at the headwaters of the
Rappahannock, ... “the most fertile part of Virginia.”
Marshall had now to meet a total denial of Lord Fairfax’s title. His
argument of ten or twelve pages shows already the characteristics, the
cogency, clear method, and neat precision of thought and speech, by
which his later work was marked. “I had conceived,” he says, “that it
was not more certain that there was such a tract of country as the
Northern Neck than that Lord Fairfax was the proprietor of it....
Gentlemen cannot suppose that a grant made by the crown to the ancestor
for services rendered or even for affection can be invalidated in the
hands of an heir because these services and affections are forgotten, or
because the thing granted has, from causes which must have been
foreseen, become more valuable than when it was given. And if it could
not be invalidated in the hands of the heir, much less can it be in the
hands of the purchaser.” As regards the construction of the grant:
“Whether Lord Fairfax’s grant extended originally beyond the forks of
the rivers or not, will no more admit of argument than it ever could
have admitted of a doubt. But whether it should be bounded by the north
or south fork of the Rappahannock was a question involved in more
uncertainty.... It is, however, no longer a question, for it has been
decided.... That decision did not create or extend Lord Fairfax’s
right, but determined what the right originally was. The bounds of many
patents are doubtful; the extent of many titles uncertain: but when a
decision is once made on them, it removes the doubt and ascertains what
the original boundaries were.” In reference to a personal appeal in
behalf of certain settlers, he says, “Those who explore and settle new
countries are generally bold, hardy, and adventurous men, whose minds as
well as bodies are fitted to encounter danger and fatigue; their object
is the acquisition of property, and they generally succeed. None will
say that the complainants have failed; and if their hardships and
dangers have any weight in the court, the defendants share in them, and
have equal claim to countenance; for they, too, with humbler views and
less extensive prospects, have explored, bled for, and settled a till
then uncultivated desert.”
Compare with this the like simple felicity and exactness of expression
in his last reported utterance in court, when he was closing his great
career as Chief Justice of the United States, forty-nine years later.
He is refusing a motion for delay: “The court has taken into its serious
and anxious consideration the motion made on the part of the government
to continue the cause of Mitchel _v._ The United States to the next
term. Though the hope of deciding causes to the mutual satisfaction of
parties would be chimerical, that of convincing them that the case has
been fully and fairly considered, that due attention has been given to
the arguments of counsel, and that the best judgment of the court has
been exercised on the case, may be sometimes indulged. Even this is not
always attainable. In the excitement produced by ardent controversy,
gentlemen view the same object through such different media that minds
not unfrequently receive therefrom precisely opposite impressions. The
court, however, must see with its own eyes, and exercise its own
judgment guided by its own reason.... The opinion of the court will be
delivered.”[11]
At first, he had brought from the army, and from his home on the
frontier, simple and rustic ways which surprised some persons at
Richmond, whose conception of greatness was associated with very
different models of dress and behavior. “He was one morning strolling,”
we are told, “through the streets of Richmond, attired in a plain linen
roundabout and shorts, with his hat under his arm, from which he was
eating cherries, when he stopped in the porch of the Eagle Hotel,
indulged in a little pleasantry with the landlord, and then passed on.”
A gentleman from the country was present, who had a case coming on
before the Court of Appeals, and was referred by the landlord to
Marshall as the best lawyer to employ. But “the careless, languid air”
of Marshall had so prejudiced the man that he refused to employ him. The
clerk, when this client entered the court-room, also recommended
Marshall, but the other would have none of him. A venerable-looking
lawyer, with powdered wig and in black cloth, soon entered, and the
gentleman engaged him. In the first case that came up, this man and
Marshall spoke on opposite sides. The gentleman listened, saw his
mistake, and secured Marshall at once; frankly telling him the whole
story, and adding that while he had come with one hundred dollars to pay
his lawyer, he had but five dollars left. Marshall good-naturedly took
this, and helped in the case. In the Virginia Federal Convention of
1788, at the age of thirty-three, he is described, rising after Monroe
had spoken, as “a tall young man, slovenly dressed in loose summer
apparel.... His manners, like those of Monroe, were in strange contrast
with those of Edmund Randolph or of Grayson.”
In such stories as these, one is reminded, as he is often reminded, of a
resemblance between Marshall and Lincoln. Very different men they were,
but both thorough Americans, with unborrowed character and manners, and
a lifelong flavor derived from no other soil.
At the height of Marshall’s reputation, in 1797, a French writer, who
had visited Richmond lately, in speaking of Edmund Randolph, says, “He
has a great practice, and stands, in that respect, nearly on a par with
Mr. J. Marshall, the most esteemed and celebrated counselor of this
town.” He mentions Marshall’s annual income as being four or five
thousand dollars. “Even by his friends,” it is added, “he is taxed with
some little propensity to indolence, but he nevertheless displays great
superiority when he applies his mind to business.” Another contemporary,
who praises his force and eloquence in speaking, yet says: “It is
difficult to rouse his faculties. He begins with reluctance, hesitation,
and vacancy of eye.... He reminds one of some great bird, which
flounders on the earth for a while before it acquires impetus to sustain
its soaring flight.” And finally, William Wirt, who was seventeen years
Marshall’s junior, and came to the bar in 1792, when Marshall was nearly
at the head of it, writing anonymously in 1804, describes him as one,
“who, without the advantage 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 attributes to him “one original and
almost supernatural faculty, ... of developing a subject by a single
glance of his mind.... 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.... All his eloquence
consists in the apparently deep self-conviction and the emphatic
earnestness and energy of his style, the close and logical connection of
his thoughts, and the easy gradations by which he opens his lights on
the attentive minds of his hearers.”
In 1789 he declined the office of District Attorney of the United States
at Richmond,[12] in 1795 that of Attorney-General of the United States,
and in 1796 that of Minister to France, all offered him by Washington.
When President Adams persuaded him, in 1797, to go, with Pinckney and
Gerry, as envoy to France, he wrote to Gerry of “General Marshall” (as
he was then called, from his rank of brigadier general, since 1793, in
the Virginia militia), “He is a plain man, very sensible, cautious,
guarded, and learned in the law of nations.” The extraordinary details
of that unsuccessful six months’ attempt to come to terms with France
are found in Marshall’s very able dispatches and in the diary which he
kept;[13] for, with the instinct of a man of affairs, he failed not to
remember, with Thomas Gray, that “a note is worth a cartload of
recollections.” His own part in the business was marked by great
moderation and ability; and on his return, in 1798, he was received at
Philadelphia with remarkable demonstrations and the utmost enthusiasm. A
correspondent of Rufus King, writing from New York in July of that year,
says, “No two men can be more beloved and honored than Pinckney and
Marshall;” and again in November: “Saving General Washington, I believe
the President, Pinckney, and Marshall are the most popular characters
now in our country. There is a certain something in the correspondence
of Pinckney and Marshall ... that has united all heads and hearts in
their eulogy.” It is understood that the American side of this
correspondence was by Marshall. Gerry had allowed himself in a measure
to be detached by the Directory from his associates, to their great
displeasure. With them, in important respects, he disagreed.
Among those who paid their respects to Marshall, on his return from
France, was Thomas Jefferson, the Vice-President, whose correspondence
shows him at the time expressing the most unflattering opinion of the
envoys. Jefferson wrote to Marshall the following note: “In after
years,” says Mrs. Hardy, one of Marshall’s descendants,[14] “the Chief
Justice frequently laughed over it, saying, ‘Mr. Jefferson came very
near telling me the truth; the added _un_ to _lucky_, policy alone
demanded.’” The note ran thus: “Thos. Jefferson presents his
compliments to General Marshall. He had the honor of calling at his
lodgings twice this morning, but was so {un}^lucky as to find that he
was out on both occasions. He wished to have expressed in person his
regret that a pre-engagement for to-day, which could not be dispensed
with, would prevent him the satisfaction of dining in company with
Genl. Marshall, and, therefore, begs leave to place here the expressions
of that respect which in company with his fellow-citizens he bears him.
“Genl. Marshall,
at Oeller’s Hotel, June 23d, 1798.”
In 1798 Adams offered to Marshall the seat on the Supreme Bench, made
vacant by the death of James Wilson. He declined it; and it went to his
old associate at William and Mary College, Bushrod Washington. Marshall
did yield, however, to General Washington’s urgent request to stand for
Congress that year. He held out long against Washington’s arguments, and
only yielded, at last, when that venerated man called attention to his
own recent sacrifice in accepting the unwelcome place of
lieutenant-general of the army. When that went into the scale it was
too much. Marshall was then on a visit to Mount Vernon, whither he had
been invited in August or September, in company with Washington’s
nephew, the coming judge.
On their way to Mount Vernon, the two travelers met with a misadventure
which gave great amusement to Washington, and of which he enjoyed
telling his friends. They came on horseback, and carried but one pair of
saddlebags, each using one side. Arriving thoroughly drenched by rain,
they were shown to a chamber to change their garments. One opened his
side of the bags and drew forth a black bottle of whiskey. He insisted
that he had opened his companion’s repository. Unlocking the other side,
they found a big twist of tobacco, some corn bread, and the equipment of
a pack-saddle. They had exchanged saddlebags with some traveler, and now
had to appear in a ludicrous misfit of borrowed clothes.[15]
The election of Marshall to Congress excited great interest.[16]
Washington heartily rejoiced in it. Jefferson, on the other hand,
remarked that while Marshall might trouble the Republicans somewhat, yet
he would now be unmasked. He had been popular with the mass of the
people, Jefferson said, from his “lax, lounging manners,” and with wiser
men through a “profound hypocrisy.” But now his British principles would
stand revealed.
The New England Federalists were very curious about him; they had been
alarmed and outraged, during the campaign, by his expressing opposition
to the alien and sedition laws; but they were much impressed by him.
Theodore Sedgwick wrote to Rufus King that he had “great powers, and
much dexterity in the application of them.... We can do nothing without
him.” But Sedgwick wished that “his education had been on the other side
of the Delaware.” George Cabot wrote to King: “General Marshall is a
leader.... But you see in him the faults of a Virginian.... He thinks
too much of that State, and he expects that the world will be governed
by rules of logic.” But Cabot hopes to see him improve, and adds, “He
seems calculated to act a great part.” In the end, the Northern
Federalists were disappointed in finding him too moderate. He held the
place of leader of the House, and passed into the cabinet in May, 1800.
On January 31, 1801, he was commissioned as Chief Justice.