MARSHALL AS A CITIZEN AND A NEIGHBOR
There is more to be said of Marshall’s private and personal life. After
he went on the bench, his principal non-judicial work, in the nature of
public service, seems to have been writing the “Life of Washington,”
with the later revision and reconstruction of that work, and his
activity in a few matters of not too partisan a sort, such as were
likely to engage the attention of a public-spirited citizen.
In 1813, at a meeting of the citizens of Richmond, he was appointed
member of a Committee of Vigilance, to aid in defending the city against
attack from the British. On June 28 he made a report, for a
sub-committee, that it was inexpedient to undertake to fortify the city.
After stating the topographical and other reasons for such an opinion,
the report goes on thus: “Your committee are too conscious of their
destitution of professional skill to advance with any confidence the
opinion they have formed; but the resolution under which they act having
made it their duty to give an opinion, they say, though with much
diffidence, that they do not think any attempt to fortify the city
advisable. It is to be saved by operations in the open field, by facing
the enemy with a force which may deter him from any attempt to penetrate
the interior of our country, and which may impress him with the danger
of separating himself from his ships. If this protection cannot be
afforded, Richmond must share the fate of other places which are in
similar circumstances. Throughout the world, open towns belong to the
army which is master of the country.... If the militia be put into the
best condition for service, if the light artillery be well manned and
supplied with horses, so as to move with celerity to any point where its
services may be required; if the cavalry be kept entire and in active
service; if the precaution of supplying in sufficient quantity all the
implements of war be taken, your committee hope and believe that this
town will have no reason to fear the invading foe.”[42]
In those efforts on the part of some of the leaders of Virginia and the
South, early in the century, to rid themselves of slavery, to which we
at the North have never done sufficient justice, Marshall took an active
part.
The American Colonization Society was organized in 1816 or 1817, with
Bushrod Washington for president. In 1823 an auxiliary society was
organized at Richmond, of which Marshall was president, an office which
he held nearly or quite up to the time of his death. It is interesting
to observe that one of the plans for colonization was to have worked out
the abolition of slavery in Virginia in the year 1901. Of slavery
Marshall wrote to a friend, in 1826: “I concur with you in thinking that
nothing portends more calamity and mischief to the Southern States than
their slave population. Yet they seem to cherish the evil, and to view
with immovable prejudice and dislike everything which may tend to
diminish it. I do not wonder that they should resist any attempt, should
one be made, to interfere with the rights of property, but they have a
feverish jealousy of measures which may do good without the hazard of
harm, that, I think, very unwise.”
In 1828, Marshall presided, in Virginia, over a convention to promote
internal improvements. On this subject he held and freely expressed
views, such as are now generally entertained, as to the power of the
general government, and the expediency of exerting them.[43]
In 1829, he allowed himself to be elected to the Virginia convention for
revising the state constitution, and took an active part in the debates.
“Tall, in a long surtout of blue, with a face of genius and an eye of
fire,” is the description that is given of him in the convention. On
several questions he influenced greatly the course of the convention,
especially in continuing, for a score of years to come, the judicial
tenure of office during good behavior.
Marshall’s membership of the society of Free Masons is sometimes spoken
of. It should be said that he lived to condemn that organization. During
the political excitement which followed the abduction of Morgan, he was
asked for information as to some praise of Freemasonry which had been
publicly attributed to him, and replied, in October, 1833, that he was
not particularly interested in the anti-masonic excitement. “The
agitations which convulse the North did not pass the Potomac.
Consequently ... I felt no inclination to volunteer in a distant
conflict, in which the wounds that might be received would not be
soothed by the consoling reflection that he suffered in the performance
of a necessary duty.” And he added that he had “never affirmed that
there was any positive good or ill in the institution itself.” This
cautious letter is illustrated by an earlier one, in July, 1833, in
which, writing confidentially to Edward Everett, he says that he became
a Mason soon after he entered the army, and afterwards continued in the
society because his neighbors did. “I followed the crowd for a time,
without attaching the least importance to its object or giving myself
the trouble to inquire why others did. It soon lost its attraction, and
though there are several lodges in the city of Richmond, I have not been
in one of them for more than forty years, except on an invitation to
accompany General Lafayette, nor have I been a member of one of them for
more than thirty. It was impossible not to perceive the useless
pageantry of the whole exhibition.” And he adds that he has become
convinced “that the institution ought to be abandoned, as one capable of
producing much evil and incapable of producing any good which might not
be effected by safe and open means.”[44]
As to Marshall’s religious affiliations, he was a regular and devoted
attendant, all his life, of the Episcopal Church, in which he was
brought up; taking an active part in the services and the responses, and
kneeling in prayer, we are told, even when the pews were so narrow that
his tall form had to be accommodated by the projection of his feet into
the aisle. His friend, Bishop Meade, the Episcopal bishop of Virginia,
states that he was never a communicant in that church; and he quotes a
letter from an Episcopal clergyman who often visited Mrs. Harvie,
Marshall’s only daughter, in her last illness, and who reports from her
the statement that, during the last months of his life, he told her
“that the reason why he never communed was that he was a Unitarian in
opinion, though he never joined their society.” It is added, however, in
the same letter, that Mrs. Harvie, a person “of the strictest probity,
the most humble piety, and the most clear and discriminating mind,” also
said that, during these last months, Marshall read Keith on Prophecy,
and was convinced by that work, and the fuller investigation to which it
led, of the supreme divinity of Jesus, and wished to commune, but
thought it his duty to do it publicly; and while waiting for the
opportunity, died.
The reader of such a statement seems to perceive or to conjecture an
anxiety to relieve the memory of the Chief Justice of an opprobrium.
Whatever the exact fact may be about this late change in opinion, there
is little occasion to be surprised that Marshall shared, during his
active life, the opinions of his friend Judge Story. The genuineness and
the simplicity of Marshall’s lifelong piety are indicated by another
statement reported from Mrs. Harvie: “Her father told her that he never
went to bed without concluding his prayer with those which his mother
taught him when a child, viz. the Lord’s prayer and the prayer
beginning, ‘Now I lay me down to sleep.’”
Marshall was a man of vigorous physique. “He was always,” says a
descendant,[45] “devoted to walking, but more especially before
breakfast in the early morning. A venerable professor I met in
Washington told me that, when he was a boy, regularly every morning at
seven o’clock, when he was on his way to school, he met the Chief
Justice returning from a long walk. He walked rapidly always. Hon.
Horace Binney says: ‘After doing my best one morning to overtake Chief
Justice Marshall, in his quick march to the Capitol, when he was nearer
to eighty than seventy, I asked him to what cause in particular he
attributed that strong and quick step, and he replied that he thought it
was most due to his commission in the army of the Revolution, in which
he had been a regular foot practitioner for six years.’”
We often hear of the Chief Justice at his “Quoit Club.” He was a famous
player at quoits. A club had been formed by some of the early Scotch
settlers of Richmond, and it came to include among its members leading
men of the city, such as Marshall, Wirt, Nicholas, Call, Munford, and
others. Chester Harding, the artist who painted the full-length portrait
of Marshall that hangs in the Boston Athenæum, tells us of seeing him at
the Quoit Club. Fortunately, language does not, like paint, limit the
artist to a single moment of time. He gives us the Chief Justice in
action. Marshall was then attending the Virginia Constitutional
Convention, which sat from October, 1829, to January, 1830. The Quoit
Club used to meet every week in a beautiful grove, about a mile from the
city. Harding went early. “I watched,” he says, “for the coming of the
old chief. He soon approached, with his coat on his arm and his hat in
his hand, which he was using as a fan. He walked directly up to a large
bowl of mint julep, which had been prepared, and drank off a tumblerful
of the liquid, smacking his lips, and then turned to the company with a
cheerful ‘How are you, gentlemen?’ He was looked upon as the best
pitcher of the party, and could throw heavier quoits than any other
member of the club. The game began with great animation. There were
several ties; and before long I saw the great Chief Justice of the
United States down on his knees, measuring the contested distance with a
straw, with as much earnestness as if it had been a point of law; and if
he proved to be in the right, the woods would ring with his triumphant
shout.”[46]
An entertaining account has been preserved[47] of a meeting of the club,
held, apparently, while Marshall was still at the bar, at which he and
Wickham--a leading Virginia lawyer, one of the counsel of Aaron
Burr--were the caterers. At the table Marshall announced that at the
last meeting two members had introduced politics, a forbidden subject,
and had been fined a basket of champagne, and that this was now
produced, as a warning to evil-doers; as the club seldom drank this
article, they had no champagne glasses, and must drink it in tumblers.
Those who played quoits retired, after a while, for a game. Most of the
members had smooth, highly polished brass quoits. But Marshall’s were
large, rough, heavy, and of iron, such as few of the members could throw
well from hub to hub. Marshall himself threw them with great success and
accuracy, and often “rang the meg.” On this occasion Marshall and the
Rev. Mr. Blair led the two parties of players. Marshall played first,
and rang the meg. Parson Blair did the same, and his quoit came down
plumply on top of Marshall’s. There was uproarious applause, which drew
out all the others from the dinner; and then came an animated
controversy as to what should be the effect of this exploit. They all
returned to the table, had another bottle of champagne, and listened to
arguments, one from Marshall, _pro se_, and one from Wickham for Parson
Blair. The company decided against Marshall. His argument is a humorous
companion piece to any one of his elaborate judicial opinions. He began
by formulating the question, “Who is winner when the adversary quoits
are on the meg at the same time?” He then stated the facts, and remarked
that the question was one of the true construction and application of
the rules of the game. The one first ringing the meg has the advantage.
No other can succeed who does not begin by displacing this first one.
The parson, he willingly allowed, deserves to rise higher and higher in
everybody’s esteem; but then he mustn’t do it by getting on another’s
back in this fashion. That is more like leapfrog than quoits. Then,
again, the legal maxim is, _Cujus est solum_, _ejus est usque ad
cœlum_,--his own right as first occupant extends to the vault of heaven;
no opponent can gain any advantage by squatting on his back. He must
either bring a writ of ejectment, or drive him out _vi et armis_. And
then, after further argument of the same sort, he asked judgment, and
sat down amidst great applause.
Mr. Wickham then rose, and made an argument of a similar pattern. No
rule, he said, requires an impossibility. Mr. Marshall’s quoit is twice
as large as any other; and yet it flies from his arm like the iron ball
at the Grecian games from the arm of Ajax. It is an iron quoit,
unpolished, jagged, and of enormous weight. It is impossible for an
ordinary quoit to move it. With much more of the same sort, he contended
that it was a drawn game. After very animated voting, designed to keep
up the uncertainty as long as possible, it was so decided. Another trial
was had, and Marshall clearly won.
All his life he played this game. There is an account of a country
barbecue in the mountain region, where a casual guest saw him, then an
old man, emerge from a thicket which bordered a brook, carrying a pile
of flat stones as large as he could hold between his right arm and his
chin. He stepped briskly up to the company and threw them down. “There!
Here are quoits enough for us all.”
Of Marshall’s simple habits, remarkable modesty, and engaging simplicity
of conduct and demeanor, every one who knew him speaks. These things
were in the grain, and outlasted all the wear and tear of life. “What
was it in him which most impressed you?” asked one of his descendants,
now a distinguished judge,[48] of an older relative who had known him.
“His humility,” was her answer. “With Marshall,” wrote President Quincy,
“I had considerable acquaintance during the eight years I was member of
Congress, from 1805 to 1813, played chess with him, and never failed to
be impressed with the frank, cordial, childlike simplicity and
unpretending manner of the man, of whose strength and breadth of
intellectual power I was ... well apprised.”
“Nothing was more usual,” we are told, as regards his life in Richmond,
“than to see him returning from market, at sunrise, with poultry in one
hand and a basket of vegetables in the other.” And, again, some one
speaks of meeting him on horseback, at sunrise, with a bag of seeds
before him, on his way to his farm, three or four miles out of town. It
was of this farm that he wrote to James Monroe, his old friend and
schoolmate, about passing so much time in “_laborious relaxation_.” The
italics are his own.
In speaking of Marshall’s personal qualities and ways, I must quote from
those exquisite passages in Judge Story’s address, delivered in the fall
of 1835, to the Suffolk bar, in which his own true affection found
expression: “Upon a first introduction he would be thought to be cold
and reserved; but he was neither the one nor the other. It was simply a
habit of easy taciturnity, watching, as it were, his own turn to follow
the line of conversation, and not to presume to lead it.... Meet him in
a stage-coach as a stranger, and travel with him a whole day, and you
would only be struck with his readiness to administer to the
accommodation of others, and his anxiety to appropriate least to
himself. Be with him the unknown guest at an inn, and he seemed adjusted
to the very scene; partaking of the warm welcome of its comforts,
whenever found; and if not found, resigning himself without complaint to
its meanest arrangements.... He had great simplicity of character,
manners, dress, and deportment, and yet with a natural dignity that
suppressed impertinence and silenced rudeness. His simplicity ... had an
exquisite naïveté, which charmed every one, and gave a sweetness to his
familiar conversation approaching to fascination. The first impression
of a stranger, upon his introduction to him, was generally that of
disappointment. It seemed hardly credible that such simplicity should be
the accompaniment of such acknowledged greatness. The consciousness of
power was not there; the air of office was not there; there was no play
of the lights or shades of rank, no study of effect in tone or bearing.”
Add to this what Judge Story said from the bench, in receiving the
resolutions of the Bar of the Supreme Court after Marshall’s death:
“But, above all, he was the ornament of human nature itself, in the
beautiful illustrations which his life constantly presented, of its most
attractive graces, and its most elevated attributes.”[49]
Of Marshall’s appearance on the bench we have a picture in one of
Story’s letters from Washington, while he was at the bar. He is writing
in 1808, the year after the Burr trial. “Marshall,” he says, “is of a
tall, slender figure, not graceful or imposing, but erect and steady.
His hair is black, his eyes small and twinkling, his forehead rather
low, but his features are in general harmonious. His manners are plain,
yet dignified; and an unaffected modesty diffuses itself through all
his actions. His dress is very simple, yet neat; his language chaste,
but hardly elegant; it does not flow rapidly, but it seldom wants
precision. In conversation he is quite familiar, but is occasionally
embarrassed by a hesitancy and drawling.... I love his laugh,--it is too
hearty for an intriguer,--and his good temper and unwearied patience are
equally agreeable on the bench and in the study.”
Daniel Webster, in 1814, while he was a member of Congress from New
Hampshire, wrote to his brother: “There is no man in the court that
strikes me like Marshall. He is a plain man, looking very much like
Colonel Adams, and about three inches taller. I have never seen a man of
whose intellect I had a higher opinion.”
In the year 1808, when Judge Story wrote what has just been quoted,
Marshall was sketched in chalk by St. Mémin. It is a beautiful portrait,
which its present owner, Mr. Thomas Marshall Smith, of Baltimore, John
Marshall’s great-grandson, has now generously allowed to be copied for
the use of the public.
It was in 1830 that Chester Harding painted for the Boston Athenæum the
full-length portrait, of which, a little later, he made the replica,
afterwards purchased, by subscription, for the Harvard Law School. “I
consider it,” says Harding, “a good picture.[50] I had great pleasure in
painting _the whole_ of such a man.... When I was ready to draw the
figure into his picture, I asked him, in order to save time, to come to
my room in the evening.... An evening was appointed; but he could not
come until after the ‘consultation,’ which lasts until about eight
o’clock.” It will be remembered that the judges, at that time, used to
lodge together, in one house. “It was a warm evening,” continues
Harding, “and I was standing on my steps waiting for him, when he soon
made his appearance, but, to my surprise, without a hat. I showed him
into my studio, and stepped back to fasten the front door, when I
encountered [several gentlemen] who knew the judge very well. They had
seen him passing by their hotel in his hatless condition, and with long
strides, as if in great haste, and had followed, curious to know the
cause of such a strange appearance.... He said that the consultation
lasted longer than he expected, and he hurried off as quickly as
possible to keep his appointment with me.” He declined the offer of a
hat on his return: “Oh no, it is a warm night; I shall not need one.”
A good many artists tried their hands on the Chief Justice, and with
every sort of result. Some depicted a dull and wooden person, some a
worthy but feeble one. Other portraits, commended for their likeness to
the original, differ much in what they represent.[51]
In the written descriptions of him, also, one needs to compare several
before he can feel much assurance of the true image. In an anonymous
account of him, preserved in Van Santvoord’s “Lives of the Chief
Justices,”[52] the reader seems to perceive the humorous exaggerations
of an entertaining and practiced writer, but, taken with due allowance,
the description may well be preserved.
“As to face and figure,” says this account, “nature had been equally
little at pains to stamp, with any princely effigy of what pleases, the
virgin gold of which she had composed his head and heart. Except that
his countenance was thoughtful and benignant, it had nothing about it
that would have commanded a second look. Separately his features were
but indifferent, jointly they were no more than commonplace. Then as to
stature, shape, and carriage, there was nothing in him that was not the
opposite of commanding or prepossessing; he was tall, yet his height was
without the look of either strength or lightness, and gave neither
dignity nor grace. His body seemed as ill as his mind well compacted; he
not only was without proportion, but of members singularly knit, that
dangled from each other and looked half dislocated. Habitually he
dressed very carelessly; in the garb, I should not dare to say in the
mode, of the last century. You would have thought he had on the old
clothes of a former generation, not made for him by even some
superannuated tailor of the period, but gotten from the wardrobe of some
antiquated slop-shop of second-hand raiment. Shapeless as he was, he
would probably have defied all fitting, by whatever skill of the shears;
judge then how the vestments of an age when, apparently, coats and
breeches were cut for nobody in particular, and waistcoats were almost
dressing gowns, sat upon him.”
Such a statement should be supplemented by what one of his family said
of him: “The descriptions of his dress are greatly exaggerated; he was
regardless of style and fashion, but all those who knew him best
testified to the extreme neatness of his attire.”[53]