HIS LAST DAYS
The year 1831 was a sad one for Marshall. The greatest apprehensions
were felt for his health. “Wirt,” says John Quincy Adams in his diary,
on February 13, 1831, “spoke to me, also, in deep concern and alarm at
the state of Chief Justice Marshall’s health.” In the autumn he went to
Philadelphia to undergo the torture of the operation of lithotomy,
before the days of ether. It was the last operation performed by the
distinguished surgeon, Dr. Physick. Another eminent surgeon, who
assisted him, Dr. Randall, has given an account of this occasion, in
which he says:--
“It will be readily admitted that, in consequence of Judge Marshall’s
very advanced age, the hazard attending the operation, however
skillfully performed, was considerably increased. I consider it but an
act of justice, due to the memory of that great and good man, to state
that, in my opinion, his recovery was in a great degree owing to his
extraordinary self-possession, and to the calm and philosophical views
which he took of his case, and the various circumstances attending it.
“It fell to my lot to make the necessary preparations. In the discharge
of this duty I visited him on the morning of the day fixed on for the
operation, two hours previously to that at which it was to be performed.
Upon entering his room I found him engaged in eating his breakfast. He
received me with a pleasant smile upon his countenance, and said: ‘Well,
doctor, you find me taking breakfast, and I assure you I have had a good
one. I thought it very probable that this might be my last chance, and
therefore I determined to enjoy it and eat heartily.’ I expressed the
great pleasure which I felt at seeing him so cheerful, and said that I
hoped all would soon be happily over. He replied to this that he did not
feel the least anxiety or uneasiness respecting the operation or its
results. He said that he had not the slightest desire to live, laboring
under the sufferings to which he was then subjected; that he was
perfectly ready to take all the chances of an operation, and he knew
there were many against him; and that if he could be relieved by it he
was willing to live out his appointed time, but if not, would rather die
than hold existence accompanied with the pain and misery which he then
endured.
“After he finished his breakfast I administered to him some medicine; he
then inquired at what hour the operation would be performed. I mentioned
the hour of eleven. He said, ‘Very well, do you wish me now for any
other purpose, or may I lie down and go to sleep?’ I was a good deal
surprised at this question, but told him that if he could sleep it would
be very desirable. He immediately placed himself upon the bed, and fell
into a profound sleep, and continued so until I was obliged to rouse him
in order to undergo the operation. He exhibited the same fortitude,
scarcely uttering a murmur, throughout the whole procedure, which, from
the peculiar nature of his complaint, was necessarily tedious.”
From the patient over a thousand calculi were taken. He had a perfect
recovery; nor did the disorder ever return.[54]
On Christmas Day of that year, as I have said, his wife died, the object
of his tenderest affection ever since he had first seen her, more than
fifty years before. The day before she died, she hung about his neck a
locket with some of her hair. He wore it always, night and day; and, by
his order, it was the last thing removed from his body when he died.[55]
It was at this period, in 1831 and 1832, that Inman’s fine portrait of
him, now hanging in the rooms of the Law Association of Philadelphia,
was painted, for the bar of that city. A replica which Marshall himself
bought for his daughter, is on the walls of the state library in
Richmond. This portrait is regarded as the best of those painted in his
later life. Certainly it best answers the description of him by an
English traveler, who, seeing him often in the spring of 1835, remarked
that “the venerable dignity of his appearance would not suffer in
comparison with that of the most respected and distinguished-looking
peer in the British House of Lords.”[56]
After his recovery, in 1831, Marshall seems to have been in good health
down to the early part of 1835. Then, we are told, he suffered “severe
contusions” in the stage-coach in returning from Washington.[57] His
health now rapidly declined. He went again for relief to Philadelphia,
and died there on July 6, 1835, of a serious disorder of the liver. He
had missed from his bedside his oldest son, Thomas, for whom he had been
asking. Upon the gravestone of that son, behind the old house at
Oakhill, you may read the pathetic tragedy, withheld from his father,
that accounts for this absence. While hastening to Philadelphia, at the
end of June, he was passing through the streets of Baltimore, in the
midst of a tempest, and was killed by the falling of a chimney in the
storm.
The great Chief Justice was carried home with every demonstration of
respect and reverence. He was buried by the side of his wife, in the
Shockoe Hill Cemetery in Richmond. There, upon horizontal tablets, are
two inscriptions of affecting simplicity, both written by himself. The
first runs thus: “John Marshall, Son of Thomas and Mary Marshall, was
born the 24th of September, 1755. Intermarried with Mary Willis Ambler,
the 3d of January, 1783. Departed this life the [6th] day of July,
1835.” The second, thus: “Sacred to the memory of Mrs. Mary Willis
Marshall, Consort of John Marshall, Born the 13th of March, 1766.
Departed this life the 25th of December, 1831. This stone is devoted to
her memory by him who best knew her worth, And most deplores her loss.”
* * * * *
Among the tributes to Chief Justice Marshall which were made in the
months that followed his death, and in later times, nothing finer has
been said than the heartfelt expression of the bar of his own circuit,
at Richmond, in November, 1835. The resolutions of Mr. B. Watkins Leigh,
unanimously adopted, recalled “the memory of the venerable judge” who
had presided there for more than thirty-four years “with such remarkable
diligence in office, that until he was disabled by the disease which
removed him from life, he was never known to be absent from the bench,
during term time, even for a day,--with such indulgence to counsel and
suitors that everybody’s convenience was consulted but his own,--with a
dignity, sustained without effort, and apparently without care to
sustain it, to which all men were solicitous to pay due respect,--with
such profound sagacity, such quick penetration, such acuteness,
clearness, strength, and comprehension of mind, that in his hands the
most complicated causes were plain, the weightiest and most difficult,
easy and light,--with such striking impartiality and justice, and a
judgment so sure, as to inspire universal confidence, so that few
appeals were ever taken from his decisions, during his long
administration of justice in this court, and those only in cases where
he himself expressed doubt,--with such modesty that he seemed wholly
unconscious of his own gigantic powers,--with such equanimity, such
benignity of temper, such amenity of manners, that not only none of the
judges who sat with him on the bench, but no member of the bar, no
officer of the court, no juror, no witness, no suitor, in a single
instance, ever found or imagined, in anything said or done, or omitted
by him, the slightest cause of offense.
“His private life was worthy of the exalted character he sustained in
public station. The unaffected simplicity of his manners; the spotless
purity of his morals; his social, gentle, cheerful disposition; his
habitual self-denial, and boundless generosity towards others; the
strength and constancy of his attachments, his kindness to his friends
and neighbors; his exemplary conduct in the relations of son, brother,
husband, father; his numerous charities; his benevolence toward all men,
and his ever active beneficence; these amiable qualities shone so
conspicuously in him, throughout his life, that highly as he was
respected, he had the rare happiness to be yet more beloved. He was,
indeed, a bright example of the true wisdom which consists in the union
of the greatest ability and the greatest virtue.”
* * * * *
On the west side of the Capitol at Washington, midway between the
staircases that ascend from the garden to the great building, and a
little in advance, there is a colossal bronze figure of Marshall by the
sculptor Story, the son of the great man’s colleague and friend,--placed
there in 1884. It is a very noble work of art, worthy of the subject and
the place. The Chief Justice is sitting, clothed in his judicial robe,
in the easy attitude of one engaged in expounding a subject of which he
is master. The figure is leaning back in the chair with the head
slightly inclining forward; the right arm rests on the arm of the chair,
with the hand open and extended; the left hand, holding a scroll, lies
easily on the other arm of the chair. The crossed legs are covered by
the gown, while low shoes and buckles, and hair gathered in a queue,
speak of lifelong habits. The solid and beautiful head, and the grave
and collected dignity of the features and the whole composition are very
noble, satisfactory, and ideally true.
The figure, standing, would be ten feet high. It sits seven feet high,
and is raised upon a suitable pedestal, decorated with marble
bas-reliefs of classical designs. These, if the truth were told, might
well be spared, but the statue itself will fitly commemorate for many
ages one of the greatest, noblest and most engaging characters in
American history.
The Riverside Press
_Electrotyped and printed by H. O. Houghton & Co._
_Cambridge, Mass., U.S.A._
FOOTNOTES:
[1] The Chief Justice seems to have inherited and accumulated a
considerable estate. By his will he gave to each of his grandsons
named John a thousand acres of land. _The Green Bag_, viii. 4. He also
had been a surveyor. _Ib._ 480.
[2] Hammond’s Blackstone, vol. i., pp. viii. xxv.
[3] Marshall’s eyes are often spoken of as black. In fact, they were
brown.
[4] It may be added that Thomas Marshall, father of the Chief Justice,
was the son of John Marshall, called “of the Forest,” from the name
of his place in Westmoreland County. Of this John it is said, in a
little autobiography of the Chief Justice of some five hundred words,
preserved in Mr. Justice Gray’s valuable oration at Richmond, on
February 4, 1901, that his “parents migrated from Wales and settled in
the county of Westmoreland in Virginia.” The will of “Thomas Marshall
carpenter,” proved May 31, 1704, describing himself as of Westmoreland
County, is printed in the _Virginia Magazine of History_, ii. 343,
344; and it is there stated in a note that this Thomas “was the
first of his race in America.” On the other hand, we are told by an
intelligent writer in Appleton’s _Cyclopædia of American Biography_,
and elsewhere, that the father of “John of the Forest” was Thomas,
born in Virginia in 1655, who died in 1704; and that it was his
father, John, a captain of cavalry in the service of Charles I., who
emigrated to Virginia about 1650.
[5] Flanders, _Lives of the Chief Justices_, ii. 291.
[6] His youngest son, Edward Carrington Marshall, graduated at Harvard
in 1826.
[7] Only six of his children grew to full age. See his touching letter
to Judge Story of June 26, 1831: “You ask me if Mrs. Marshall and
myself have ever lost a child. We have lost four,” etc.--_Proceedings
of the Mass. Hist. Soc._ (2d series) xiii. 345.
[8] Richard Anderson, father of Robert Anderson, the hero of Fort
Sumter. See Marion Harland’s _Old Colonial Homesteads_, 97.
[9] But see Mrs. Hardy, in _The Green Bag_, viii. 482.
[10] _Old Churches and Families of Virginia_, ii. 105.
[11] It was given by another judge.
[12] Mr. Justice Gray preserves this fact in his address on Marshall.
His commission bore the same date with that of Chief Justice Jay,
September 26, 1789,--two days after the approval of the Judiciary Act.
[13] See Wait’s _State Papers_, iii. 165-304.
[14] _The Green Bag_, viii. 482.
[15] Paulding’s _Life of Washington_, ii. 191; _Lippincott’s
Magazine_, ii. 624, 625.
[16] In an amusing account of this election (Munford’s _The Two
Parsons_), we are told that the sheriff presided, with the two
candidates, Marshall and John Clopton, seated on the justice’s
bench. The voter, being asked for whom he voted, gave the name of
his candidate; and the latter thanked him; _e.g._, “Your vote is
appreciated, sir,” said Marshall to his friend Parson Blair. For an
account of the same method of conducting elections in Virginia at a
later period, see John S. Wise’s _The End of an Era_.
[17] “The masterly and conclusive argument of John Marshall in the
House of Representatives. 8 Stat. 129; Wharton’s State Trials, 392;
Bee [Reports], 286; 5 Wheat. appendix 3.”--Gray, J., speaking for
the Supreme Court of the United States, in Fong Yue Ting _v._ U. S.,
149 U. S. 698, 714. This speech is also found in Moore’s _American
Eloquence_, ii. 7.
[18] The President had written to the Secretary of State from Quincy,
May 21, 1799: “How far the President of the United States would be
justified in directing the judge to deliver up the offender is not
clear. I have no objection to advise, and request him to do so.”
Wharton’s State Trials, 418.
[19] The short “autobiography” before referred to (_ante_, p. 10, n.)
ends thus: “I have written no book except the ‘Life of Washington,’
which was executed with so much precipitation as to require much
correction.”
[20] Van Santvoord, _Lives of the Chief Justices_, 343, n.
[21] Coxe, _Jud. Power_, 95-102; Thayer’s _Cases on Constitutional
Law_, i. 146-149.
[22] Eakin _v._ Raub, 12 Sergeant & Rawle, 330.
[23] What Pinckney said in 1799 was this: “Upon no subject am I
more convinced than that it is an unsafe and dangerous doctrine in
a republic ever to suppose that a judge ought to possess the right
of questioning or deciding upon the constitutionality of treaties,
laws, or any act of the legislature. It is placing the opinion of
an individual, or of two or three, above that of both branches of
Congress, a doctrine which is not warranted by the Constitution, and
will not, I hope, long have many advocates in this country.” Wharton,
_State Trials_, 412.
[24] 4 Amer. Jurist, 293; Story, Const. § 1579, n.
[25] Stuart _v._ Laird, 1 Cranch, 299.
[26] Marshall, when the act of 1802 restored the old system, stated
to his associates his deliberate agreement with the opinion expressed
by his predecessors above referred to, and proposed to refuse to sit
in the circuit court. All his brethren agreed with his view on the
constitutional point, but thought the question should be regarded
as at rest, by reason of the earlier practice of the court, up to
1801. This view prevailed, and was soon afterwards, as above stated,
judicially adopted by the court. This statement is made by Chancellor
Kent in 3 N. Y. Review, 347 (1838).
For the knowledge of the authorship of this valuable article and of
another related one in 2 _ib._ 372, I am indebted to the courtesy of
Dr. J. S. Billings, the Director of the New York Public Library, and
the investigations of Mr. V. H. Paltsits, one of the librarians in
that institution.
[27] This construction, that the statute purported to authorize their
acting in that capacity was afterwards, in 1794, held by the Supreme
Court to be wrong. Yale Todd’s Case, 13 Howard, 52.
[28] Hayburn’s Case, 2 Dallas, 409.
[29] Volume v., p. 444 (Philadelphia edition, 1807).
[30] 1 Cranch, 137.
[31] In like manner, Jay, commissioned Chief Justice on September
26, 1789, continued, at Washington’s request, to act also as foreign
secretary until Jefferson’s return from Europe. Jefferson did not
reach New York until March 21, 1790.
[32] And so the careful headnote of Judge Curtis in 1 Curtis’s
_Decisions of the Supreme Court_, 368.
[33] See Ford’s _Jefferson_, ix. 62; draft of a letter to District
Attorney Hay.
[34] Hare, Am. Const. Law, i. 607.
[35] See, however, Chancellor Kent in 2 N. Y. Rev. 372.
[36] Mississippi _v._ Johnson, 4 Wallace, 475, 492 (1866).
[37] 12 Serg. & Rawle, 330; s. c. 1 Thayer’s Const. Cases, 133.
[38] As to this general subject see “Origin and Scope of the American
Doctrine of Constitutional Law,” 7 _Harvard Law Review_, 129. Compare
the remark of Lord John Russell: “Every political constitution, in
which different bodies share the supreme power, is only enabled
to exist by the forbearance of those among whom this power is
distributed.” I quote this from the motto of Woodrow Wilson’s fifth
chapter in his _Congressional Government_.
[39] _The Nation_, February 7, 1901.
[40] He married John Marshall’s sister.
[41] These letters were printed in 1897 in the _American Hist.
Review_, ii. 294. I was not aware of their ever having been printed,
until after these pages were in type.
[42] _The Virginia Magazine of History_, vii. 233.
[43] Chancellor Kent in _New York Review_, 348, 349.
[44] _Anti-masonic Pamphlets_, Harvard College Library, No. 12, p. 18;
_ib._ No. 9.
[45] Mrs. Hardy, 8 _Green Bag_, 487.
[46] In speaking of this same Club, Mr. G. W. Munford says: “We have
seen Mr. Marshall, in later times, when he was Chief Justice of the
United States, on his hands and knees, with a straw and a penknife,
the blade of the knife stuck through the straw, holding it between
the edge of the quoit and the hub; and when it was a very doubtful
question, pinching or biting off the ends of the straw, until it would
fit to a hair.”
James K. Paulding has preserved an entertaining account of a game,
in 1820, when Jarvis, the artist, was present, playing, apparently
on the same side with the Chief Justice. “I remember,” he says, “in
the course of the game, and when the parties were nearly at a tie,
that some dispute arose as to the quoit nearest the meg. The Chief
Justice was chosen umpire between the quoit belonging to Jarvis and
that of Billy Haxall. The judge bent down on one knee, and with a
straw essayed the decision of this important question on which the
fate of the game in a great measure depended. After nicely measuring,
and frequently biting off the end of the straw, ‘Gentlemen,’ said
he, ‘you will perceive this quoit would have it, but the rule of
the game is to measure from the visible iron. Now that clod of dirt
hides almost half an inch. But, then he has a right to the nearest
part of the meg; and here, as you will perceive, is a splinter, which
belongs to and is part of the meg, as much as the State of Virginia
is a part of the Union. This is giving Mr. Haxall a great advantage;
but, notwithstanding, in my opinion, Jarvis has it by at least the
sixteenth part of an inch, and so I decide, like a just judge, in my
own favor.’” 2 _Lippincott’s Magazine_, 623, 626. It is said that he
was often appointed thus to be judge in his own case.
[47] See _The Two Parsons_, by G. W. Munford.
[48] Mr. Justice Keith, now President of the Virginia Court of Appeals.
[49] 10 Peters’s Reports, vii.
[50] The half-length, sitting portrait of Marshall, in the dining-hall
at Cambridge, was painted by Harding, in 1828, for the Chief Justice
himself; and by him given to Judge Story, “to be preserved, when
I shall sleep with my fathers, as a testimonial of sincere and
affectionate friendship.” Story bequeathed it to the college.
[51] See an interesting’ article by Mr. Justice Bradley, of the
Supreme Court of the United States, on portraits of Marshall, in
the _Century Magazine_ for September, 1889, (vol. 38, page 778.) A
portrait by Jarvis, valued as a work of art and as a good likeness,
is in the possession of Mr. Justice Gray. Mr. Justice Bradley appears
to be wrong in saying that there is a full-length of Marshall at
Washington and Lee University. There are two portraits of him there,
but, as I am assured, no full-length.
[52] P. 363, n.
[53] Mrs. Hardy, quoting her grandmother, in 8 _Green Bag_, 484.
[54] My friend Dr. Horace Howard Furness, of Philadelphia, writes
(and allows me to quote): “I remember hearing my father say that Dr.
Physick told him, just after that operation of lithotomy, that he had
‘washed the judge out as clean as a plate,’ and that he went on to
say that after the operation the strictest quiet was enjoined, not
a muscle was to be moved; but what was his alarm on his next visit
to see Judge Marshall sitting up in bed with paper and pencil on his
knees, writing to his wife!”
[55] Marion Harland, _Old Colonial Homesteads_, 98.
[56] _Travels in North America_, by Hon. Charles Augustus
Murray,--“the late Sir Charles Murray, at one time Master of the
Household to the Queen, who, as a young man, was attached to the
British Legation at Washington.”--_The Spectator_, February 9, 1901,
p. 199.
[57] Many a “severe contusion” must he have suffered in those
primitive days, from upsets and joltings, in driving every year
between Richmond and Washington, some 120 miles each way; from
Richmond to Raleigh and back, in attending his North Carolina circuit,
about 175 miles each way; and between Richmond and Oakhill, his
country place, every summer, about 100 miles each way. For instance,
in 1812, Cranch, the reporter, remarks that Marshall was not present
at the beginning of the term, as he “received an injury by the
oversetting of the stage-coach on his journey from Richmond.”
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Transcriber's Notes.
Welcome to Project Gutenberg's edition of John Marshall by James
Bradley Thayer from the _Riverside Biographical Series_. Below is a
list of emendations to the text. This version of the book was checked
with an updated version by the same publisher and author, with the same
stated year of publication. There were six changes in the updated book.
We made the changes that appeared to correct typos. The changes in the
updated version of the book that changed the _meaning_ of the sentence
are listed here, but we did not change the text. We also made one
emendation (on Page 25), where quoted text was missing the left-handed
double quote.
Faint dotted lines underneath the text indicate that more details about
the clause can be found in the transcriber notes. In the HTML file, you
can hover over the faint dotted line and you will receive an alert
stating this fact.
Detailed Notes:
On page 12, the order of 'in them' and 'that he surpassed' was
juxtaposed in the updated version, which reads like so:
"It was said that he surpassed in them any man in the army;"
In footnote [7], the volume of the Mass. Hist. Soc. reference was
changed in the updated version to xiv.
On page 25, the left handed double quote was missing from the quote
attributed to Bishop Meade. This quote was missing in both versions of
the book that we consulted. We made a best-guess as to where the author
intended to begin the quote from Meade. See the paragraph on page 25
ending with the following clause:
“the most fertile part of Virginia.”
On page 34, a period replaced the colon in the updated version. We did
not change the original text, which reads:
Jefferson wrote to Marshall the following note:
On page 35, 'Genl. Marshall' replaced 'Genl-Marshall' in the text. We
also changed the text of the original book, because a) the original
words were a typo, and b) retaining the typo is a distraction, because
c) the spelling of 'Genl. Marshall' appears several lines later in the
text.
On page 72, has 'settled by' replaced 'presented to' in an updated
version of the following sentence:
But not until 1803, early in Marshall’s time, was the point judicially
presented to the Supreme Court.
On page 105, 'I shall speak' replaced 'I have spoken.' in an updated
version of the text. We retained the original mistake by the author,
but placed a link to the relevant information in the text.