MARSHALL.

John Marshall, son of Colonel Thomas Marshall, a planter of moderate

fortune, was born in Germantown, Fauquier County, Virginia, on the

twenty-fourth of September, 1755. When twenty-one years of age, he was

commissioned as a lieutenant in the continental service, and marching

with his regiment to the north, was appointed captain in the spring of

1777, and in that capacity served in the battles of Brandywine,

Germantown, and Monmouth; was at Valley Forge during the winter of 1778,

and was one of the covering party at the assault of Stoney Point, in

June, 1779. Having returned to his native State at the expiration of the

enlistment of the Virginia troops, in 1780 he received a license for the

practice of the law, and rapidly rose to distinction in that profession.

In 1782 he was chosen a representative to the legislature, and afterward

a member of the executive council In January, 1783, he married Mary

Willis Ambler, of York, in Virginia, with whom he lived for fifty years

in the tenderest affection. He was a delegate to the convention of

Virginia which met on the second of June, 1788, to take into

consideration the new constitution, and in conjunction with his friend,

Mr. Madison, mainly contributed to its adoption, in opposition to the

ardent efforts of Henry, Grayson, and Mason. His name first became

generally known throughout the nation by his vindication, in the

legislature of the State, of the ratification of Jay's treaty by

President Washington. No report of that speech remains, but the evidence

of its ability survives in the effects which it produced on the

legislature and the country. He continued in the practice of the law,

having declined successively the offices of Attorney General of the

United States and Minister to France, until 1797, when with General

Pinkney and Mr. Gerry, he was sent on a special mission to the French

republic. The manner in which the dignity of the American character was

maintained against the corruption of the Directory and its ministers is

well known. The letters of the seventeenth of January and third of

April, 1798, to Talleyrand, the Minister of Foreign Relations, have

always been attributed to Marshall, and they rank among the ablest and

most effective of diplomatic communications. Mr. Marshall arrived in

New-York on the seventeenth of June, 1798, and on the nineteenth entered

Philadelphia. At the intelligence of his approach the whole city poured

out toward Frankford to receive him, and escorted him to his lodgings

with all the honors of a triumph. In after years, when he visited

Philadelphia, he often spoke of the feelings with which, as he came near

the city on that occasion, with some doubts as to the reception which he

might meet with in the existing state of parties, he beheld the

multitude rushing forth to crowd about him with every demonstration of

respect and approbation, as having been the most interesting and

gratifying of his life.

On his return to Virginia, at the special request of General Washington,

he became a candidate for the House of Representatives, and was elected

in the spring of 1799. His greatest effort in Congress was his speech in

opposition to the resolutions of Edward Livingston relative to Thomas

Nash, alias Jonathan Robbins. Fortunately we possess an accurate report

of it, revised by himself. The case was, that Thomas Nash, having

committed a murder on board the British frigate Hermione, navigating the

high seas under a commission from the British king, had sought an asylum

within the United States, and his delivery had been demanded by the

British minister under the twenty-seventh article of the treaty of amity

between the two nations. Mr. Marshall's argument first established that

the crime was within the jurisdiction of Great Britain, on the general

principles of public law, and then demonstrated, that under the

constitution the case was subject to the disposal of the executive, and

not the judiciary. He distinguished these departments from one another

with an acuteness of discrimination and a force of logic which

frustrated the attempt to carry the judiciary out of its orbit, and

settled the political question, then and for ever. It is said that Mr.

Gallatin, whose part it was to reply to Mr. Marshall, at the close of

the speech turned to some of his friends and said, "_You_ may answer

that if you choose; _I_ cannot." The argument deserves to rank among the

most dignified displays of human intellect. At the close of the session,

Mr. Marshall was appointed Secretary of War, and soon after Secretary of

State. During his continuance in that department our relations with

England were in a very interesting condition, and his correspondence

with Mr. King exhibits his abilities and spirit in the most dignified

point of view. "His despatch of the twentieth of September, 1800," says

Mr. Binney, "is a noble specimen of the first order of state papers, and

shows the most finished adaptation of parts for the station of an

American Secretary of State." On the thirty-first of January, 1801, he

was appointed Chief Justice of the United States, in which office he

continued until his death. In 1804 he published the Biography of

Washington, which for candor, accuracy, and comprehension, will for ever

be the most authentic history of the Revolution. He died in Philadelphia

on the sixth of July, 1835.

Mr. Marshall's career as Chief Justice extended through a period of more

than thirty-four years, which is the longest judicial tenure recorded in

history. To one who cannot follow his great judgments, in which, at the

same time, the depths of legal wisdom are disclosed and the limits of

human reason measured, the language of just eulogy must wear an

appearance of extravagance. In his own profession he stands for the

reverence of the wise rather than for the enthusiasm of the many. The

proportion of the figure was so perfect, that the sense of its vastness

was lost. Above the difficulties of common minds, he was in some degree

above their sympathy. Saved from popularity by the very rarity of his

qualities, he astonished the most where he was best understood. The

questions upon which his judgment was detained, and the considerations

by which his decision was at last determined, were such as ordinary

understandings, not merely could not resolve, but were often inadequate

even to appreciate or apprehend. It was his manner to deal directly with

the results of thought and learning, and the length and labor of the

processes by which these results were suggested and verified might elude

the consciousness of those who had not themselves attempted to perform

them. From the position in which he stood of evident superiority to his

subject, it was obviously so easy for him to describe its character and

define its relations, that we sometimes forgot to wonder by what

faculties or what efforts he had attained to that eminence. We were so

much accustomed to see his mind move only in the light, that there was a

danger of our not observing that the illumination by which it was

surrounded was the beam of its own presence, and not the natural

atmosphere of the scene.

The true character and measure of Marshall's greatness are missed by

those who conceive of him as limited within the sphere of the justices

of England, and who describe him merely as the first of lawyers. To have

been "the most consummate judge that ever sat in judgment," was the

highest possibility of Eldon's merit, but was only a segment of

Marshall's fame. It was in a distinct department, of more dignified

functions, almost of an opposite kind, that he displayed those abilities

that advance his name to the highest renown, and shed around it the

glories of a statesman and legislator. The powers of the Supreme Court

of the United States are such as were never before confided to a

judicial tribunal by any people. As determining, without appeal, its own

jurisdiction, and that of the legislature and executive, that court is

not merely the highest estate in the country, but it settles and

continually moulds the constitution of the government. Of the great work

of constructing a nation, but a small part, practically, had been

performed when the written document had been signed by the convention: a

vicious theory of interpretation might defeat the grandeur and unity of

the organization, and a want of comprehension and foresight might

fatally perplex the harmony of the combination. The administration of a

system of polity is the larger part of its establishment. What the

constitution was to be, depended on the principles on which the federal

instrument was to be construed, and they were not to be found in the

maxims and modes of reasoning by which the law determines upon social

contracts between man and man, but were to be sought anew in the

elements of political philosophy and the general suggestions of

legislative wisdom. To these august duties Judge Marshall brought a

greatness of conception that was commensurate with their difficulty; he

came to them in the spirit and with the strength of one who would

minister to the development of a nation; and it was the essential

sagacity of his guiding mind that saved us from illustrating the

sarcasms of Mr. Burke about paper constitutions. He saw the futility of

attempting to control society by a metaphysical theory; he apprehended

the just relation between opinion and life, between the forms of

speculation and the force of things. Knowing that we are wise in respect

to nature, only as we give back to it faithfully what we have learned

from it obediently, he sought to fix the wisdom of the real and to

resolve it into principles. He made the nation explain its constitution,

and compelled the actual to define the possible. Experience was the

dialectic by which he deduced from substantial premises a practical

conclusion. The might of reason by which convenience and right were thus

moulded into union, was amazing. But while he knew the folly of

endeavoring to be wiser than time, his matchless resources of good sense

contributed to the orderly development of the inherent elements of the

constitution, by a vigor and dexterity as eminent in their kind as they

were rare in their combination. The vessel of state was launched by the

patriotism of many: the chart of her course was designed chiefly by

Hamilton: but when the voyage was begun, the eye that observed, and the

head that reckoned, and the hand that compelled the ship to keep her

course amid tempests without, and threats of mutiny within, were those

of the great Chief Justice. Posterity will give him reverence as one of

the founders of the nation; and of that group of statesmen who may one

day perhaps be regarded as above the nature, as they certainly were

beyond the dimensions of men, no figure, save ONE alone, will rise upon

the eye in grandeur more towering than that of John Marshall.

The authority of the Supreme Court, however, is not confined to cases of

constitutional law; it embraces the whole range of judicial action, as

it is distributed in England, into legal, equitable, and maritime

jurisdictions. The equity system of this court was too little developed

to enable us to say what Marshall would have been as a chancellor. It is

difficult to admit that he would have been inferior to Lord Eldon: it is

impossible to conceive that he could at all have resembled Lord Eldon.

But undoubtedly the native region and proper interest of a mind so

analytical and so sound, so piercing and so practical, was the common

law; that vigorous system of manly reason and essential right, that

splendid scheme of morality expanded by logic and informed by prudence.

Perhaps the highest range of English intelligence is illustrated in the

law; yet where, in the whole line of that august succession, will be

found a character which fills the measure of judicial greatness so

completely as Chief Justice Marshall? Where, in English history, is the

judge, whose mind was at once so enlarged and so systematic, who so

thoroughly had reduced professional science to general reason, in whose

disciplined intellect technical learning had so completely passed into

native sense? Vast as the reach of the law is, it is not an exaggeration

to say that Marshall's understanding was greater, and embraced the forms

of legal sagacity within it, as a part of its own spontaneous wisdom. He

discriminated with instinctive accuracy between those technicalities

which have sprung from the narrowness of inferior minds, and those which

are set by the law for the defence of some vital element of justice or

reason. The former he brushed away like cobwebs, while he yielded to the

latter with a respect which sometimes seemed to those "whose eyes were"

not "opened," a species of superstition. In his judicial office the

method of Marshall appeared to be, first to bow his understanding

reverently to the law, and calmly and patiently to receive its

instructions as those of an oracle of which he was the minister; then to

prove these dictates by the most searching processes of reason, and to

deliver them to others, not as decrees to be obeyed, but as logical

manifestations of moral truth. Undoubtedly he made much use of adjudged

cases; but he used them to give light and certainty to his own judgment,

and not for the vindication or support of the law. He would have deemed

it a reproach alike to his abilities and his station, if he should have

determined upon precedent what could have been demonstrated by reason,

or had referred to authority what belonged to principle. With singular

capacity, he united systematic reason with a perception of particular

equity: too scrupulous a regard for the latter led Lord Eldon, in most

instances, to adjudicate nothing but the case before him; but Marshall

remembered that while he owed to the suitors the decision of the case,

he owed to society the establishment of the principle. His mind

naturally tended, not to suggestion and speculation, but to the

determination of opinion and the closing of doubts. On the bench, he

always recollected that he was not merely a lawyer, and much less a

legal essayist; he was conscious of an official duty and an official

authority; and considered that questions might be discussed elsewhere,

but came to be settled by him. The dignity with which these duties were

discharged was not the least admirable part of the display. It was

wisdom on the seat of power, pronouncing the decrees of justice.

Political and legal sense are so distinct from one another as almost to

be irreconcilable in the same mind. The latter is a mere course of

deduction from premises; the other calls into exercise the highest order

of perceptive faculties, and that quick felicity of intuition which

flashes to its conclusions by a species of mental sympathy rather than

by any conscious process of argumentation. The one requires that the

susceptibility of the judgment should be kept exquisitely alive to every

suggestion of the practical, so as to catch and follow the insensible

reasonings of life, rather than to reason itself: the other demands the

exclusion of every thing not rigorously exact, and the concentration of

the whole consciousness of the mind in kindling implicit truth into

formal principles. The wonder, in Judge Marshall's case, was to see

these two almost inconsistent faculties, in quality so matchless, and in

development so magnificent, harmonized and united in his marvellous

intelligence. We beheld him pass from one to the other department

without confusing their nature, and without perplexing his own

understanding. When he approached a question of constitutional

jurisprudence, we saw the lawyer expand into the legislator; and in

returning to a narrower sphere, pause from the creative glow of

statesmanship, and descend from intercourse with the great conceptions

and great feelings by which nations are guided and society is advanced,

to submit his faculties with docility to the yoke of legal forms, and

with impassible calmness to thread the tangled intricacies of forensic

technicalities.

There was in this extraordinary man an unusual combination of the

capacity of apprehending truth, with the ability to demonstrate and make

it palpable to others. They often exist together in unequal degrees.

Lord Mansfield's power of luminous explication was so surpassing that

one might almost say that he made others perceive what he did not

understand himself; but the numerous instances in which his decisions

have been directly overthrown by his successors, and the still greater

number of cases in which his opinions have been silently departed from,

compel a belief that his judgment was not of the truest kind. Lord

Eldon's judicial sagacity was a species of inspiration; but he seemed to

be unable not only to convince others; but even to certify himself of

the correctness of his own greatest and wisest determinations. But Judge

Marshall's sense appeared to be at once both instinctive and analytical:

his logic extended as far as his perception: he had no propositions in

his thoughts which he could not resolve into their axioms. Truth came to

him as a revelation, and from him as a demonstration. His mind was more

than the faculty of vision; it was a body of light, which irradiated the

subject to which it was directed, and rendered it as distinct to every

other eye as it was to its own.

The mental integrity of this illustrious man was not the least important

element of his greatness. Those qualities of vanity, fondness for

display, the love of effect, the solicitation of applause, sensibility

to opinions, which are the immoralities of intellect, never attached to

that stainless essence of pure reason. He seemed to men to be a

passionless intelligence; susceptible to no feeling but the constant

love of right; subject to no affection but a polarity toward truth.

As has already been stated, the great chief justice was married when

twenty-eight years of age, to Miss Ambler, of York, in Virginia; there

have been few such unions in every respect more fortunate and

delightful; the wife died but a short time before the husband, who, not

more than two days previous to his own decease, directed that his body

should be laid with hers, and that the plain stone to indicate the place

of their rest should have only this simple inscription:

"John Marshall, son of Thomas and Mary Marshall, was born on the

24th of September, 1755, intermarried with Mary Willis Ambler on

the 3d of January, 1783, and departed this life the ---- day

of ---- 18--."

With no other alteration than the filling of the blanks, this is

engraved on the modest white marble which is over their remains in the

beautiful cemetery on Shoccoe Hill, of Richmond.

The chief justice always lived in a style of singular simplicity; when

Secretary of State at Washington, he resided in a brick building hardly

larger than most of the kitchens now in use, and his house in Richmond,

to which he soon after removed, was characteristically unostentatious.

From Richmond he frequently walked out three or four miles to his farm

in the county of Henrico; and once a year he made a protracted visit to

his other farm, near his birth-place, in Fauquier.

No man had a keener relish for social and convivial enjoyments, and

numerous anecdotes are told in illustration of this trait in his

character. Nearly all the period of his residence in Richmond, he was a

member of a club which met near the city once a fortnight to pitch

quoits, and mingle in relaxing conversation; there was no one more

punctual in his attendance at its meetings, or who contributed more to

their pleasantness; and such was his skill in the manly game he

practised, that he would hurl his iron ring, weighing two pounds, with

rarely erring aim, fifty-five or sixty feet, and when he or his partner

made any specially successful exhibition of skill, he would leap up and

clap his hands with the light-hearted enthusiasm of boyhood.

=Ames.=

[Illustration: Ames fac-simile of letter]