CHAPTER V

THE MAN AND THE LAWYER

Tall, meagre, emaciated, his muscles relaxed, his joints loosely

connected, his head small, his complexion swarthy, his countenance

expressing great good humor and hilarity. (William Wirt.)

Mr. Marshall can hardly be regarded as a learned lawyer. (Gustavus

Schmidt.)

His head is one of the best organized of any I have known. (Rufus

King.)

On a pleasant summer morning when the cherries were ripe, a tall,

ungainly man in early middle life sauntered along a Richmond street. His

long legs were encased in knee breeches, stockings, and shoes of the

period; and about his gaunt, bony frame hung a roundabout or short linen

jacket. Plainly, he had paid little attention to his attire. He was

bareheaded and his unkempt hair was tied behind in a queue. He carried

his hat under his arm, and it was full of cherries which the owner was

eating as he sauntered idly along.[456] Mr. Epps's hotel (The Eagle)

faced the street along which this negligently appareled person was

making his leisurely way. He greeted the landlord as he approached,

cracked a joke in passing, and rambled on in his unhurried walk.

At the inn was an old gentleman from the country who had come to

Richmond where a lawsuit, to which he was a party, was to be tried. The

venerable litigant had a hundred dollars to pay to the lawyer who should

conduct the case, a very large fee for those days. Who was the best

lawyer in Richmond, asked he of his host? "The man who just passed us,

John Marshall by name," said the tavern-keeper. But the countryman would

have none of Marshall. His appearance did not fill the old man's idea of

a practitioner before the courts. He wanted, for his hundred dollars, a

lawyer who looked like a lawyer. He would go to the court-room itself

and there ask for further recommendation. But again he was told by the

clerk of the court to retain Marshall, who, meanwhile, had ambled into

the court-room.

But no! This searcher for a legal champion would use his own judgment.

Soon a venerable, dignified person, solemn of face, with black coat and

powdered wig, entered the room. At once the planter retained him. The

client remained in the court-room, it appears, to listen to the lawyers

in the other cases that were ahead of his own. Thus he heard the pompous

advocate whom he had chosen; and then, in astonishment, listened to

Marshall.

The attorney of impressive appearance turned out to be so inferior to

the eccentric-looking advocate that the planter went to Marshall,

frankly told him the circumstances, and apologized. Explaining that he

had but five dollars left, the troubled old farmer asked Marshall

whether he would conduct his case for that amount. With a kindly jest

about the power of a black coat and a powdered wig, Marshall

good-naturedly accepted.[457]

This not too highly colored story is justified by all reports of

Marshall that have come down to us. It is some such picture that we must

keep before us as we follow this astonishing man in the henceforth easy

and giant, albeit accidental, strides of his great career. John

Marshall, after he had become the leading lawyer of Virginia, and,

indeed, throughout his life, was the simple, unaffected man whom the

tale describes. Perhaps consciousness of his own strength contributed to

his disregard of personal appearance and contempt for studied manners.

For Marshall knew that he carried heavier guns than other men. "No one,"

says Story, who knew him long and intimately, "ever possessed a more

entire sense of his own extraordinary talents ... than he."[458]

Marshall's most careful contemporary observer, William Wirt, tells us

that Marshall was "in his person, tall, meagre, emaciated; his muscles

relaxed and his joints so loosely connected, as not only to disqualify

him, apparently, for any vigorous exertion of body, but to destroy

everything like elegance and harmony in his air and movements.

"Indeed, in his whole appearance, and demeanour; dress, attitudes,

gesture; sitting, standing, or walking; he is as far removed from the

idolized graces of lord Chesterfield, as any other gentleman on earth.

"To continue the portrait; his head and face are small in proportion to

his height; his complexion swarthy; the muscles of his face being

relaxed; ... his countenance has a faithful expression of great good

humour and hilarity; while his black eyes--that unerring index--possess

an irradiating spirit which proclaims the imperial powers of the mind

that sits enthroned within....

"His voice is dry, and hard; his attitude, in his most effective

orations, often extremely awkward; as it was not unusual for him to

stand with his left foot in advance, while all his gesture proceeded

from his right arm, and consisted merely in a vehement, perpendicular

swing of it from about the elevation of his head to the bar, behind

which he was accustomed to stand."[459]

During all the years of clamorous happenings, from the great Virginia

Convention of 1788 down to the beginning of Adams's Administration and

in the midst of his own active part in the strenuous politics of the

time, Marshall practiced his profession, although intermittently.

However, during the critical three weeks of plot and plan, debate and

oratory in the famous month of June, 1788, he managed to do some "law

business": while Virginia's Constitutional Convention was in session, he

received twenty fees, most of them of one and two pounds and the largest

from "Col^o. W. Miles Cary 6.4." He drew a deed for his fellow member of

the Convention, James Madison, while the Convention was in session, for

which he charged his colleague one pound and four shillings.

But there was no time for card-playing during this notable month and no

whist or backgammon entries appear in Marshall's Account Book. Earlier

in the year we find such social expenses as "Card table 5.10 Cards 8/

paper 2/-6" and "expenses and loss at billiards at dif^t times 3"

(pounds). In September, 1788, occurs the first entry for professional

literature, "Law books 20/-1"; but a more important book purchase was

that of "Mazai's book sur les etats unis[460] 18" (shillings), an entry

which shows that some of Marshall's family could read French.[461]

Marshall's law practice during this pivotal year was fairly profitable.

He thus sums up his earnings and outlay, "Rec^d. in the year 1788

1169.05; and expended in year 1788, 515-13-7" which left Marshall more

than 653 pounds or about $1960 Virginia currency clear profit for the

year.[462]

The following year (1789) he did a little better, his net profit being a

trifle over seven hundred pounds, or about $2130 Virginia currency. In

1790 he earned a few shillings more than 1427 pounds and had about $2400

Virginia currency remaining, after paying all expenses. In 1791 he did

not do so well, yet he cleared over $2200 Virginia currency. In 1792 his

earnings fell off a good deal, yet he earned more than he expended, over

402 pounds (a little more than $1200 Virginia currency).

In 1793 Marshall was slightly more successful, but his expenses also

increased, and he ended this year with a trifle less than 400 pounds

clear profit. He makes no summary in 1794, but his Account Book shows

that he no more than held his own. This business barometer does not

register beyond the end of 1795,[463] and there is no further evidence

than the general understanding current in Richmond as to the amount of

his earnings after this date. La Rochefoucauld reported in 1797 that

"Mr. Marshall does not, from his practice, derive above four or five

thousand dollars per annum and not even that sum every year."[464] We

may take this as a trustworthy estimate of Marshall's income; for the

noble French traveler and student was thorough in his inquiries and took

great pains to verify his statements.

In 1789 Marshall bought the tract of land amounting to an entire city

"square" of two acres,[465] on which, four years later, he built the

comfortable brick residence where he lived, while in Richmond, during

the remainder of his life. This house still stands (1916) and is in

excellent repair. It contains nine rooms, most of them commodious, and

one of them of generous dimensions where Marshall gave the "lawyer

dinners" which, later, became so celebrated. This structure was one of a

number of the important houses of Richmond.[466] Near by were the

residences of Colonel Edward Carrington, Daniel Call, an excellent

lawyer, and George Fisher, a wealthy merchant; these men had married the

three sisters of Marshall's wife. The house of Jacquelin Ambler was also

one of this cluster of dwellings. So that Marshall was in daily

association with four men to whom he was related by marriage, a not

negligible circumstance; for every one of them was a strong and

successful man, and all of them were, like Marshall, pronounced

Federalists. Their views and tastes were the same, they mutually aided

and supported one another; and Marshall was, of course, the favorite of

this unusual family group.

In the same locality lived the Leighs, Wickhams, Ronalds, and others,

who, with those just mentioned, formed the intellectual and social

aristocracy of the little city.[467] Richmond grew rapidly during the

first two decades that Marshall lived there. From the village of a few

hundred people abiding in small wooden houses, in 1783, the Capital

became, in 1795, a vigorous town of six thousand inhabitants, dwelling

mostly in attractive brick residences.[468] This architectural

transformation was occasioned by a fire which, in 1787, destroyed most

of the buildings in Richmond.[469] Business kept pace with the growth of

the city, wealth gradually and healthfully accumulated, and the comforts

of life appeared. Marshall steadily wove his activities into those of

the developing Virginia metropolis and his prosperity increased in

moderate and normal fashion.

[Illustration: JOHN MARSHALL'S HOUSE, RICHMOND]

[Illustration: THE LARGE ROOM WHERE THE FAMOUS "LAWYERS' DINNERS" WERE

GIVEN]

In his personal business affairs Marshall showed a childlike faith in

human nature which sometimes worked to his disadvantage. For instance,

in 1790 he bought a considerable tract of land in Buckingham County,

which was heavily encumbered by a deed of trust to secure "a debt of

a former owner" of the land to Caron de Beaumarchais.[470] Marshall

knew of this mortgage "at the time of the purchase, but he felt no

concern ... because" the seller verbally "promised to pay the debt and

relieve the land from the incumbrance."

So he made the payments through a series of years, in spite of the fact

that Beaumarchais's mortgage remained unsatisfied, that Marshall urged

its discharge, and, finally, that disputes concerning it arose. Perhaps

the fact that he was the attorney of the Frenchman in important

litigation quieted apprehension. Beaumarchais having died, his agent,

unable to collect the debt, was about to sell the land under the trust

deed, unless Marshall would pay the obligation it secured. Thus,

thirteen years after this improvident transaction, Marshall was forced

to take the absurd tangle into a court of equity.[471]

But he was as careful of matters entrusted to him by others as this land

transaction would suggest that he was negligent of his own affairs.

Especially was he in demand, it would seem, when an enterprise was to be

launched which required public confidence for its success. For instance,

the subscribers to a fire insurance company appointed him on the

committee to examine the proposed plan of business and to petition the

Legislature for a charter,[472] which was granted under the name of the

"Mutual Assurance Society of Virginia."[473] Thus Marshall was a founder

of one of the oldest American fire insurance companies.[474] Again, when

in 1792 the "Bank of Virginia," a State institution, was organized,[475]

Marshall was named as one of the committee to receive and approve

subscriptions for stock.[476]

No man could have been more watchful than was Marshall of the welfare of

members of his family. At one of the most troubled moments of his life,

when greatly distressed by combined business and political

complications,[477] he notes a love affair of his sister and, unasked,

carefully reviews the eligibility of her suitor. Writing to his brother

James on business and politics, he says:--

"I understand that my sister Jane, while here [Richmond], was addressed

by Major Taylor and that his addresses were encouraged by her. I am not

by any means certain of the fact nor did I suspect it until we had

separated the night preceding her departure and consequently I could

have no conversation with her concerning it.

"I believe that tho' Major Taylor was attach'd to her, it would probably

have had no serious result if Jane had not manifested some partiality

for him. This affair embarrasses me a good deal. Major Taylor is a young

gentleman of talents and integrity for whom I profess and feel a real

friendship. There is no person with whom I should be better pleased if

there were not other considerations which ought not to be overlook'd.

Mr. Taylor possesses but little if any fortune, he is encumbered with a

family, and does not like his profession. Of course he will be as

eminent in his profession as his talents entitle him to be. These are

facts unknown to my sister but which ought to be known to her.

"Had I conjectured that Mr. Taylor was contemplated in the character of

a lover I shou'd certainly have made to her all proper communications. I

regret that it was concealed from me. I have a sincere and real

affection and esteem for Major Taylor but I think it right in affairs of

this sort that the real situation of the parties should be mutually

understood. Present me affectionately to my sister."[478]

From the beginning of his residence in Richmond, Marshall had been an

active member of the Masonic Order. He had become a Free Mason while in

the Revolutionary army,[479] which abounded in camp lodges. It was due

to his efforts as City Recorder of Richmond that a lottery was

successfully conducted to raise funds for the building of a Masonic hall

in the State Capital in 1785.[480] The following year Marshall was

appointed Deputy Grand Master. In 1792 he presided over the Grand Lodge

as Grand Master _pro tempore_; and the next year he was chosen as the

head of the order in Virginia. He was reëlected as Grand Master in 1794;

and presided over the meetings of the Grand Lodge held during 1793 until

1795 inclusive. During the latter year the Masonic hall in Manchester

was begun and he assisted in the ceremonies attending the laying of the

corner-stone, which bore this inscription: "This stone was laid by the

Worshipful Archibald Campbell, Master of the Manchester Lodge of free &

accepted Masons Assisted by & in the presence of the Most Worshipful

John Marshall Grand Master of Masons to Virginia."[481]

Upon the expiration of his second term in this office, the Grand Lodge

"Resolved, that the Grand Lodge are truly sensible of the great

attention of our late Grand Master, John Marshall, to the duties of

Masonry, and that they entertain an high sense of the wisdom displayed

by him in the discharge of the duties of his office; and as a token of

their entire approbation of his conduct do direct the Grand Treasurer to

procure and present him with an elegant Past Master's jewel."[482]

From 1790 until his election to Congress, nine years later,[483]

Marshall argued one hundred and thirteen cases decided by the Court of

Appeals of Virginia. Notwithstanding his almost continuous political

activity, he appeared, during this time, in practically every important

cause heard and determined by the supreme tribunal of the State.

Whenever there was more than one attorney for the client who retained

Marshall, the latter almost invariably was reserved to make the closing

argument. His absorbing mind took in everything said or suggested by

counsel who preceded him; and his logic easily marshaled the strongest

arguments to support his position and crushed or threw aside as

unimportant those advanced against him.

Marshall preferred to close rather than open an argument. He wished to

hear all that other counsel might have to say before he spoke himself;

for, as has appeared, he was but slightly equipped with legal

learning[484] and he informed himself from the knowledge displayed by

his adversaries. Even after he had become Chief Justice of the Supreme

Court of the United States and throughout his long and epochal occupancy

of that high place, Marshall showed this same peculiarity which was so

prominent in his practice at the bar.

Every contemporary student of Marshall's method and equipment notes the

meagerness of his learning in the law. "Everyone has heard of the

gigantick abilities of John Marshall; as a most able and profound

reasoner he deserves all the praise which has been lavished upon him,"

writes Francis Walker Gilmer, in his keen and brilliant contemporary

analysis of Marshall. "His mind is not very richly stored with

knowledge," he continues, "but it is so creative, so well organized by

nature, or disciplined by early education, and constant habits of

systematick thinking, that he embraces every subject with the clearness

and facility of one prepared by previous study to comprehend and explain

it."[485]

Gustavus Schmidt, who was a competent critic of legal attainments and

whose study of Marshall as a lawyer was painstaking and thorough, bears

witness to Marshall's scanty acquirements. "Mr. Marshall," says Schmidt,

"can hardly be regarded as a learned lawyer.... His acquaintance with

the Roman jurisprudence as well as with the laws of foreign countries

was not very extensive. He was what is called a common law lawyer in the

best & noblest acceptation of that term."

Mr. Schmidt attempts to excuse Marshall's want of those legal weapons

which knowledge of the books supply.

"He was educated for the bar," writes Schmidt, "at a period when

digests, abridgments & all the numerous facilities, which now smooth

the path of the law student were almost unknown & when you often sought

in vain in the Reporters which usually wore the imposing form of folios,

even for an index of the decisions & when marginal notes of the points

determined in a case was a luxury not to be either looked for or

expected.

"At this period when the principles of the Common Law had to be studied

in the black-letter pages of Coke upon Littleton, a work equally

remarkable for quaintness of expression, profundity of research and the

absence of all method in the arrangements of its very valuable

materials; when the rules of pleading had to be looked for in Chief

Justice Saunders's Reports, while the doctrinal parts of the

jurisprudence, based almost exclusively on the precedents had to be

sought after in the reports of Dyer, Plowden, Coke, Popham ... it

was ... no easy task to become an able lawyer & it required no common

share of industry and perseverance to amass sufficient knowledge of the

law to make even a decent appearance in the forum."[486]

It would not be strange, therefore, if Marshall did cite very few

authorities in the scores of cases argued by him. But it seems certain

that he would not have relied upon the "learning of the law" in any

event; for at a later period, when precedents were more abundant and

accessible, he still ignored them. Even in these early years other

counsel exhibited the results of much research; but not so Marshall. In

most of his arguments, as reported in volumes one, two, and four of

Call's Virginia Reports and in volumes one and two of Washington's

Virginia Reports,[487] he depended on no authority whatever. Frequently

when the arguments of his associates and of opposing counsel show that

they had explored the whole field of legal learning on the subject in

hand, Marshall referred to no precedent.[488] The strongest feature of

his argument was his statement of the case.

The multitude of cases which Marshall argued before the General Court of

Appeals and before the High Court of Chancery at Richmond covered every

possible subject of litigation at that time. He lost almost as

frequently as he won. Out of one hundred and twenty-one cases reported,

Marshall was on the winning side sixty-two times and on the losing side

fifty times. In two cases he was partly successful and partly

unsuccessful, and in seven it is impossible to tell from the reports

what the outcome was.

Once Marshall appeared for clients whose cause was so weak that the

court decided against him on his own argument, refusing to hear opposing

counsel.[489] He was extremely frank and honest with the court, and on

one occasion went so far as to say that the opposing counsel was in the

right and himself in the wrong.[490] "My own opinion," he admitted to

the court in this case, "is that the law is correctly stated by Mr.

Ronald [the opposing counsel], but the point has been otherwise

determined in the General Court." Marshall, of course, lost.[491]

Nearly all the cases in which Marshall was engaged concerned property

rights. Only three or four of the controversies in which he took part

involved criminal law. A considerable part of the litigation in which he

was employed was intricate and involved; and in this class of cases his

lucid and orderly mind made him the intellectual master of the

contending lawyers. Marshall's ability to extract from the confusion of

the most involved question its vital elements and to state those

elements in simple terms was helpful to the court, and frankly

appreciated by the judges.

Few letters of Marshall to his fellow lawyers written during this period

are extant. Most of these are very brief and confined strictly to the

particular cases which he had been retained by his associate attorneys

throughout Virginia to conduct before the Court of Appeals.

Occasionally, however, his humor breaks forth.

"I cannot appear for Donaghoe," writes Marshall to a country member of

the bar who lived in the Valley over the mountains. "I do not decline

his business from any objection to his _bank_. To that I should like

very well to have free access & wou'd certainly discount _from_ it as

largely as he wou'd permit, but I am already fixed by Rankin & as those

who are once in the bank do not I am told readily get out again I

despair of being ever able to touch the guineas of Donaghoe.

"Shall we never see you again in Richmond? I was very much rejoiced when

I heard that you were happily married but if that amounts to a ne exeat

which is to confine you entirely to your side of the mountain, I shall

be selfish enough to regret your good fortune & almost wish you had

found some little crooked rib among the fish and oysters which would

once a year drag you into this part of our terraqueous globe.

"You have forgotten I believe the solemn compact we made to take a

journey to Philadelphia together this winter and superintend for a while

the proceedings of Congress."[492]

Again, writing to Stuart concerning a libel suit, Marshall says:

"Whether the truth of the libel may be justified or not is a perfectly

unsettled question. If in that respect the law here varies from the law

of England it must be because such is the will of their Honors for I

know of no legislative act to vary it. It will however be right to

appeal was it only to secure a compromise."[493]

Marshall's sociableness and love of play made him the leader of the

Barbecue Club, consisting of thirty of the most agreeable of the

prominent men in Richmond. Membership in this club was eagerly sought

and difficult to secure, two negatives being sufficient to reject a

candidate. Meetings were held each Saturday, in pleasant weather, at

"the springs" on the farm of Mr. Buchanan, the Episcopal clergyman.

There a generous meal was served and games played, quoits being the

favorite sport. One such occasion of which there is a trustworthy

account shows the humor, the wit, and the good-fellowship of Marshall.

He welcomed the invited guests, Messrs. Blair and Buchanan, the famous

"Two Parsons" of Richmond, and then announced that a fine of a basket of

champagne, imposed on two members for talking politics at a previous

meeting of the club, had been paid and that the wine was at hand. It was

drunk from tumblers and the Presbyterian minister joked about the danger

of those who "drank from tumblers _on_ the table becoming tumblers

_under_ the table." Marshall challenged "Parson" Blair to a game of

quoits, each selecting four partners. His quoits were big, rough, heavy

iron affairs that nobody else could throw, those of the other players

being smaller and of polished brass. Marshall rang the meg and Blair

threw his quoit directly over that of his opponent. Loud were the cries

of applause and a great controversy arose as to which player had won.

The decision was left to the club with the understanding that when the

question was determined they should "crack another bottle of champagne."

Marshall argued his own case with great solemnity and elaboration. The

one first ringing the meg must be deemed the winner, unless his

adversary knocked off the first quoit and put his own in its place.

This required perfection, which Blair did not possess. Blair claimed to

have won by being on top of Marshall; but suppose he tried to reach

heaven "by riding on my back," asked Marshall. "I fear that from my many

backslidings and deficiencies, he may be badly disappointed." Blair's

method was like playing leap frog, said he. And did anybody play

backgammon in that way? Also there was the ancient legal maxim, "_Cujus

est solum, ejus est usque ad coelum_": being "the first occupant his

right extended from the ground up to the vault of heaven and no one had

a right to become a squatter on his back." If Blair had any claim "he

must obtain a writ of ejectment or drive him [Marshall] from his

position vi et armis." Marshall then cited the boys' game of marbles

and, by analogy, proved that he had won and should be given the verdict

of the club.

Wickham argued at length that the judgment of the club should be that

"where two adversary quoits are on the same meg, neither is victorious."

Marshall's quoit was so big and heavy that no ordinary quoit could move

it and "no rule requires an impossibility." As to Marshall's insinuation

that Blair was trying to reach "Elysium by mounting on his back," it was

plain to the club that such was not the parson's intention, but that he

meant only to get a more elevated view of earthly things. Also Blair, by

"riding on that pinnacle," will be apt to arrive in time at the upper

round of the ladder of fame. The legal maxim cited by Marshall was

really against his claim, since the ground belonged to Mr. Buchanan and

Marshall was as much of a "squatter" as Blair was. "The first squatter

was no better than the second." And why did Marshall talk of ejecting

him by force of arms? Everybody knew that "parsons are men of peace and

do not vanquish their antagonists _vi et armis_. We do not deserve to

prolong this riding on Mr. Marshall's back; he is too much of a

_Rosinante_ to make the ride agreeable." The club declined to consider

seriously Marshall's comparison of the manly game of quoits with the

boys' game of marbles, for had not one of the clergymen present preached

a sermon on "marvel not"? There was no analogy to quoits in Marshall's

citation of leap frog nor of backgammon; and Wickham closed, amid the

cheers of the club, by pointing out the difference between quoits and

leap frog.

The club voted with impressive gravity, taking care to make the vote as

even as possible and finally determined that the disputed throw was a

draw. The game was resumed and Marshall won.[494]

Such were Marshall's diversions when an attorney at Richmond. His

"lawyer dinners" at his house,[495] his card playing at Farmicola's

tavern, his quoit-throwing and pleasant foolery at the Barbecue Club,

and other similar amusements which served to take his mind from the

grave problems on which, at other times, it was constantly working, were

continued, as we shall see, and with increasing zest, after he became

the world's leading jurist-statesman of his time. But neither as lawyer

nor judge did these wholesome frivolities interfere with his serious

work.

Marshall's first case of nation-wide interest, in which his argument

gave him fame among lawyers throughout the country, was the historic

controversy over the British debts. When Congress enacted the Judiciary

Law of 1789 and the National Courts were established, British creditors

at once began action to recover their long overdue debts. During the

Revolution, other States as well as Virginia had passed laws

confiscating the debts which their citizens owed British subjects and

sequestering British property.

Under these laws, debtors could cancel their obligations in several

ways. The Treaty of Peace between the United States and Great Britain

provided, among other things, that "It is agreed that creditors on

either side shall meet with no legal impediments to the recovery of the

full value in sterling money of all bona fide debts heretofore

contracted." The Constitution provided that "All treaties made, or which

shall be made, under the authority of the United States, shall be the

supreme law of the land; and the judges in every State shall be bound

thereby, anything in the Constitution or laws of any State to the

contrary notwithstanding,"[496] and that "The judicial power shall

extend to all cases in law and equity arising under this Constitution,

the laws of the United States, and treaties made, or which shall be

made, under their authority; to all cases ... between a State, or the

citizens thereof, and foreign States citizens, or subjects."[497]

Thus the case of Ware, Administrator, _vs._ Hylton ET AL., which

involved the validity of a State law in conflict with a treaty,

attracted the attention of the whole country when finally it reached the

Supreme Court. The question in that celebrated controversy was whether a

State law, suspending the collection of a debt due to a subject of Great

Britain, was valid as against the treaty which provided that no "legal

impediment" should prevent the recovery of the obligation.

Ware _vs._ Hylton was a test case; and its decision involved immense

sums of money. Large numbers of creditors who had sought to cancel their

debts under the confiscation laws were vitally interested. Marshall, in

this case, made the notable argument that carried his reputation as a

lawyer beyond Virginia and won for him the admiration of the ablest men

at the bar, regardless of their opinion of the merits of the

controversy.

It is an example of "the irony of fate" that in this historic legal

contest Marshall supported the theory which he had opposed throughout

his public career thus far, and to demolish which his entire after life

was given. More remarkable still, his efforts for his clients were

opposed to his own interests; for, had he succeeded for those who

employed him, he would have wrecked the only considerable business

transaction in which he ever engaged.[498] He was employed by the

debtors to uphold those laws of Virginia which sequestered British

property and prevented the collection of the British debts; and he put

forth all his power in this behalf.

Three such cases were pending in Virginia; and these were heard twice by

the National Court in Richmond as a consolidated cause, the real issue

being the same in all. The second hearing was during the May Term of

1793 before Chief Justice Jay, Justice Iredell of the Supreme Court, and

Judge Griffin of the United States District Court. The attorneys for the

British creditors were William Ronald, John Baker, John Stark, and John

Wickham. For the defendants were Alexander Campbell, James Innes,

Patrick Henry, and John Marshall. Thus we see Marshall, when thirty-six

years of age, after ten years of practice at the Richmond bar,

interrupted as those years were by politics and legislative activities,

one of the group of lawyers who, for power, brilliancy, and learning,

were unsurpassed in America.

The argument at the Richmond hearing was a brilliant display of

eloquence, reasoning, and erudition, and, among lawyers, its repute has

reached even to the present day. Counsel on both sides exerted every

ounce of their strength. When Patrick Henry had finished his appeal,

Justice Iredell was so overcome that he cried, "Gracious God! He is an

orator indeed!"[499] The Countess of Huntingdon, who was then in

Richmond and heard the arguments of all the attorneys, declared: "If

every one had spoken in Westminster Hall, they would have been honored

with a peerage."[500]

In his formal opinion, Justice Iredell thus expressed his admiration:

"The cause has been spoken to, at the bar, with a degree of ability

equal to any occasion.... I shall as long as I live, remember with

pleasure and respect the arguments which I have heard on this case: they

have discovered an ingenuity, a depth of investigation, and a power of

reasoning fully equal to anything I have ever witnessed.... Fatigue has

given way under its influence; the heart has been warmed, while the

understanding has been instructed."[501]

Marshall's argument before the District Court of Richmond must have

impressed his debtor clients more than that of any other of their

distinguished counsel, with the single exception of Alexander Campbell;

for when, on appeal to the Supreme Court of the United States, the case

came on for hearing in 1796, we find that only Marshall and Campbell

appeared for the debtors.

It is unfortunate that Marshall's argument before the Supreme Court at

Philadelphia is very poorly reported. But inadequate as the report is,

it still reveals the peculiar clearness and the compact and simple

reasoning which made up the whole of Marshall's method, whether in legal

arguments, political speeches, diplomatic letters, or judicial opinions.

Marshall argued that the Virginia law barred the recovery of the debts

regardless of the treaty. "It has been conceded," said he, "that

independent nations have, in general, the right to confiscation; and

that Virginia, at the time of passing her law, was an independent

nation." A State engaged in war has the powers of war, "and confiscation

is one of those powers, weakening the party against whom it is employed

and strengthening the party that employs it." Nations have equal powers;

and, from July 4, 1776, America was as independent a nation as Great

Britain. What would have happened if Great Britain had been victorious?

"Sequestration, confiscation, and proscription would have followed in

the train of that event," asserted Marshall.

Why, then, he asked, "should the confiscation of British property be

deemed less just in the event of an American triumph?" Property and its

disposition is not a natural right, but the "creature of civil society,

and subject in all respects to the disposition and control of civil

institutions." Even if "an individual has not the power of extinguishing

his debts," still "the community to which he belongs ... may ... upon

principles of public policy, prevent his creditors from recovering

them." The ownership and control of property "is the offspring of the

social state; not the incident of a state of nature. But the Revolution

did not reduce the inhabitants of America to a state of nature; and if

it did, the plaintiff's claim would be at an end." Virginia was within

her rights when she confiscated these debts.

As an independent nation Virginia could do as she liked, declared

Marshall. Legally, then, at the time of the Treaty of Peace in 1783,

"the defendant owed nothing to the plaintiff." Did the treaty revive

the debt thus extinguished? No: For the treaty provides "that creditors

on either side shall meet with no lawful impediment to the recovery" of

their debts. Who are the creditors? "There cannot be a creditor where

there is not a debt; and the British debts were extinguished by the act

of confiscation," which was entirely legal.

Plainly, then, argued Marshall, the treaty "must be construed with

reference to those creditors" whose debts had not been extinguished by

the sequestration laws. There were cases of such debts and it was to

these only that the treaty applied. The Virginia law must have been

known to the commissioners who made the treaty; and it was unthinkable

that they should attempt to repeal those laws in the treaty without

using plain words to that effect.

Such is an outline of Marshall's argument, as inaccurately and

defectively reported.[502]

Cold and dry as it appears in the reporter's notes, Marshall's address

to the Supreme Court made a tremendous impression on all who heard it.

When he left the court-room, he was followed by admiring crowds. The

ablest public men at the Capital were watching Marshall narrowly and

these particularly were captivated by his argument. "His head is one of

the best organized of any one that I have known," writes the keenly

observant King, a year later, in giving to Pinckney his estimate of

Marshall. "This I say from general Reputation, and more satisfactorily

from an Argument that I heard him deliver before the fed'l Court at

Philadelphia."[503] King's judgment of Marshall's intellectual strength

was that generally held.

Marshall's speech had a more enduring effect on those who listened to it

than any other address he ever made, excepting that on the Jonathan

Robins case.[504] Twenty-four years afterwards William Wirt, then at the

summit of his brilliant career, advising Francis Gilmer upon the art of

oratory, recalled Marshall's argument in the British Debts case as an

example for Gilmer to follow. Wirt thus contrasts Marshall's method with

that of Campbell on the same occasion:--

"Campbell played off all his Apollonian airs; but they were lost.

Marshall spoke, as he always does, to the judgment merely and for the

simple purpose of convincing. Marshall was justly pronounced one of the

greatest men of the country; he was followed by crowds, looked upon, and

courted with every evidence of admiration and respect for the great

powers of his mind. Campbell was neglected and slighted, and came home

in disgust.

"Marshall's maxim seems always to have been, 'aim exclusively _at

Strength_:' and from his eminent success, I say, if I had my life to go

over again, I would practice on his maxim with the most rigorous

severity, until the character of my mind was established."[505]

[Illustration]

In another letter to Gilmer, Wirt again urges his son-in-law to imitate

Marshall's style. In his early career Wirt had suffered in his own

arguments from too much adornment which detracted from the real solidity

and careful learning of his efforts at the bar. And when, finally, in

his old age he had, through his own mistakes, learned the value of

simplicity in statement and clear logic in argument, he counseled young

Gilmer accordingly.

"In your arguments at the bar," he writes, "_let argument strongly

predominate_. Sacrifice your flowers.... Avoid as you would the gates of

death, the reputation for floridity.... Imitate ... Marshall's simple

process of reasoning."[506]

Following the advice of his distinguished brother-in-law, Gilmer studied

Marshall with the hungry zeal of ambitious youth. Thus it is that to

Francis Gilmer we owe what is perhaps the truest analysis, made by a

personal observer, of Marshall's method as advocate and orator.

"So perfect is his analysis," records Gilmer, "that he extracts the

whole matter, the kernel of the inquiry, unbroken, undivided, clean and

entire. In this process, such is the instinctive neatness and precision

of his mind that no superfluous thought, or even word, ever presents

itself and still he says everything that seems appropriate to the

subject.

"This perfect exemption from any unnecessary encumbrance of matter or

ornament, is in some degree the effect of an aversion for the labour of

thinking. So great a mind, perhaps, like large bodies in the physical

world, is with difficulty set in motion. That this is the case with Mr.

Marshall's is manifest, from his mode of entering on an argument both in

conversation and in publick debate.

"It is difficult to rouse his faculties; he begins with reluctance,

hesitation, and vacancy of eye; presently his articulation becomes less

broken, his eye more fixed, until finally, his voice is full, clear, and

rapid, his manner bold, and his whole face lighted up, with the mingled

fires of genius and passion; and he pours forth the unbroken stream of

eloquence, in a current deep, majestick, smooth, and strong.

"He reminds one of some great bird, which flounders and flounces on the

earth for a while before it acquires the impetus to sustain its soaring

flight.

"The characteristick of his eloquence is an irresistible cogency, and a

luminous simplicity in the order of his reasoning. His arguments are

remarkable for their separate and independent strength, and for the

solid, compact, impenetrable order in which they are arrayed.

"He certainly possesses in an eminent degree the power which had been

ascribed to him, of mastering the most complicated subjects with

facility, and when moving with his full momentum, even without the

appearance of resistance."

Comparing Marshall and Randolph, Gilmer says:--

"The powers of these two gentlemen are strikingly contrasted by nature.

In Mr. Marshall's speeches, all is reasoning; in Mr. Randolph's

everything is declamation. The former scarcely uses a figure; the latter

hardly an abstraction. One is awkward; the other graceful.

"One is indifferent as to his words, and slovenly in his pronunciation;

the other adapts his phrases to the sense with poetick felicity; his

voice to the sound with musical exactness.

"There is no breach in the train of Mr. Marshall's thoughts; little

connection between Mr. Randolph's. Each has his separate excellence, but

either is far from being a finished orator."[507]

Another invaluable first-hand analysis of Marshall's style and manner of

argument is that of William Wirt, himself, in the vivacious descriptions

of "The British Spy":--

"He possesses one original, and, almost supernatural faculty, the

faculty of developing a subject by a single glance of his mind, and

detecting at once, the very point on which every controversy depends. No

matter what the question; though ten times more knotty than 'the gnarled

oak,' the lightning of heaven is not more rapid nor more resistless,

than his astonishing penetration.

"Nor does the exercise of it seem to cost him an effort. On the

contrary, it is as easy as vision. I am persuaded that his eye does not

fly over a landscape and take in its various objects with more

promptitude and facility, than his mind embraces and analyses the most

complex subject.

"Possessing while at the bar this intellectual elevation, which enabled

him to look down and comprehend the whole ground at once, he determined

immediately and without difficulty, on which side the question might be

most advantageously approached and assailed.

"In a bad cause his art consisted in laying his premises so remotely

from the point directly in debate, or else in terms so general and so

spacious, that the hearer, seeing no consequence which could be drawn

from them, was just as willing to admit them as not; but his premises

once admitted, the demonstration, however distant, followed as

certainly, as cogently, as inevitably, as any demonstration in

Euclid."[508]

Marshall's supremacy, now unchallenged, at the Virginia bar was noted by

foreign observers. La Rochefoucauld testifies to this in his exhaustive

volumes of travel:--

"Mr. J. Marshall, conspicuously eminent as a professor of the law, is

beyond all doubt one of those who rank highest in the public opinion at

Richmond. He is what is termed a federalist, and perhaps somewhat warm

in support of his opinions, but never exceeding the bounds of propriety,

which a man of his goodness and prudence and knowledge is incapable of

transgressing.

"He may be considered as a distinguished character in the United States.

His political enemies allow him to possess great talents but accuse him

of ambition. I know not whether the charge be well or ill grounded, or

whether that ambition might ever be able to impel him to a dereliction

of his principles--a conduct of which I am inclined to disbelieve the

possibility on his part.

"He has already refused several employments under the general

government, preferring the income derived from his professional labours

(which is more than sufficient for his moderate system of economy),

together with a life of tranquil ease in the midst of his family and in

his native town.

"Even by his friends he is taxed with some little propensity to

indolence; but even if this reproach were well founded, he nevertheless

displays great superiority in his profession when he applies his mind to

business."[509]

When Jefferson foresaw Marshall's permanent transfer to public life he

advised James Monroe to practice law in Richmond because "the business

is very profitable;[510] ... and an opening of great importance must be

made by the retirement of Marshall."[511]

Marshall's solid and brilliant performance in the British Debts case

before the Supreme Court at Philadelphia did much more than advance him

in his profession. It also focused upon him the keen scrutiny of the

politicians and statesmen who at that time were in attendance upon

Congress in the Quaker City. Particularly did the strength and

personality of the Virginia advocate impress the Federalist leaders.

These vigilant men had learned of Marshall's daring championship of the

Jay Treaty in hostile Virginia. And although in the case of Ware _vs._

Hylton, Marshall was doing his utmost as a lawyer before the Supreme

Court to defeat the collection of the British debts, yet his courageous

advocacy of the Jay Treaty outweighed, in their judgment, his

professional labors in behalf of the clients who had employed him.

The Federalist leaders were in sore need of Southern support; and when

Marshall was in Philadelphia on the British Debts case, they were prompt

and unsparing in their efforts to bind this strong and able man to them

by personal ties. Marshall himself unwittingly testifies to this. "I

then [during this professional visit to Philadelphia] became

acquainted," he relates, "with Mr. Cabot, Mr. Ames, Mr. Dexter, and Mr.

Sedgwick of Massachusetts, Mr. Wadsworth of Connecticut, and Mr. King of

New York. I was delighted with these gentlemen. The particular subject

(the British Treaty) which introduced me to their notice was at that

time so interesting, and a Virginian who supported, with any sort of

reputation, the measures of the government, was such a _rara avis_,

that I was received by them all with a degree of kindness which I had

not anticipated. I was particularly intimate with Mr. Ames, and could

scarcely gain credit with him when I assured him that the appropriations

[to effectuate the treaty] would be seriously opposed in Congress."[512]

As we shall presently see, Marshall became associated with Robert Morris

in the one great business undertaking of the former's life. Early in

this transaction when, for Marshall, the skies were still clear of

financial clouds, he appears to have made a small purchase of bank stock

and ventured modestly into the commercial field. "I have received your

letter of 18 ulto," Morris writes Marshall, "& am negotiating for Bank

Stock to answer your demand."[513]

And again: "I did not succeed in the purchase of the Bank Stock

mentioned in my letter of the 3^d Ulto to you and as M^r Richard tells

me in his letter of the 4 Inst that you want the money for the Stock,

you may if you please draw upon me for $7000 giving me as much time in

the sight as you can, and I will most certainly pay your drafts as they

become due. The Brokers shall fix the price of the Stock at the market

price at the time I pay the money & I will then state the Am^t including

Dividends & remit you the Balance but if you prefer having the Stock I

will buy it on receiving your Answer to this, cost what it may."[514]

Soon afterward, Morris sent Marshall the promised shares of stock,

apparently to enable him to return shares to some person in Richmond

from whom he had borrowed them.

"You will receive herewith enclosed the Certificates for four shares of

Bank Stock of the United States placed in your name to enable you to

return the four shares to the Gentlemen of whom you borrowed them, this

I thought better than remitting the money lest some difficulty should

arise about price of shares. Two other shares in the name of M^r Geo

Pickett is also enclosed herewith and I will go on buying and remitting

others untill the number of Ten are completed for him which shall be

done before the time limited in your letter of the 12^h Ins^t The

dividends shall also be remitted speedily."[515]

Again Washington desired Marshall to fill an important public office,

this time a place on the joint commission, provided for in the Jay

Treaty, to settle the British claims. These, as we have seen, had been

for many years a source of grave trouble between the two countries.

Their satisfactory adjustment would mean, not only the final settlement

of this serious controversy, but the removal of an ever-present cause of

war.[516] But since Marshall had refused appointment to three offices

tendered him by Washington, the President did not now communicate with

him directly, but inquired of Charles Lee, Attorney-General of Virginia,

whether Marshall might be prevailed upon to accept this weighty and

delicate business.

"I have very little doubt," replied Lee, "that Mr. John Marshall would

not act as a Commissioner under the Treaty with Great Britain, for

deciding on the claims of creditors. I have been long acquainted with

his private affairs, and I think it almost impossible for him to

undertake that office. If he would, I know not any objection that

subsists against him.

"First, he is not a debtor.[517] Secondly, he cannot be benefitted or

injured by any decision of the Commissioners. Thirdly, his being

employed as counsel, in suits of that kind, furnishes no reasonable

objection; nor do I know of any opinions that he has published, or

professes, that might, with a view of impartiality, make him liable to

be objected to.

"Mr. Marshall is at the head of his profession in Virginia, enjoying

every convenience and comfort; in the midst of his friends and the

relations of his wife at Richmond; in a practice of his profession that

annually produces about five thousand dollars on an average; with a

young and increasing family; and under a degree of necessity to continue

his profession, for the purpose of complying with contracts not yet

performed."[518]

The "contracts" which Marshall had to fulfill concerned the one

important financial adventure of his life. It was this, and not, as some

suppose, the condition of his invalid wife, to which Marshall vaguely

referred in his letter to Washington declining appointment as

Attorney-General and as Minister to France.

The two decades following the establishment of the National Government

under the Constitution were years of enormous land speculation. Hardly a

prominent man of the period failed to secure large tracts of real

estate, which could be had at absurdly low prices, and to hold the lands

for the natural advance which increasing population would bring. The

greatest of these investors was Robert Morris, the financier of the

Revolution, the second richest man of the time,[519] and the leading

business man of the country.

[Illustration]

John Marshall had long been the attorney in Virginia for Robert Morris,

who frequently visited that State, sometimes taking his family with him.

In all probability, it was upon some such journey that James M.

Marshall, the brother of John Marshall, met and became engaged to Hester

Morris, daughter of the great speculator, whom he married on April 19,

1795.[520] James M. Marshall--nine years younger than his

brother--possessed ability almost equal to John Marshall and wider and

more varied accomplishments.[521]

It is likely that the Pennsylvania financier, before the marriage,

suggested to the Marshall brothers the purchase of what remained of the

Fairfax estate in the Northern Neck, embracing over one hundred and

sixty thousand acres of the best land in Virginia.[522] At any rate,

sometime during 1793 or 1794 John Marshall, his brother, James M.

Marshall, his brother-in-law, Rawleigh Colston, and General Henry Lee

contracted for the purchase of this valuable holding.[523] In January of

that year James M. Marshall sailed for England to close the

bargain.[524] The money to buy the Fairfax lands was to be advanced by

Robert Morris, who, partly for this purpose, sent James M. Marshall to

Europe to negotiate[525] loans, immediately after his marriage to Hester

Morris.

At Amsterdam "some Capitalists proposed to supply on very hard terms a

Sum more than Sufficient to pay Mr. Fairfax," writes Morris, and James

M. Marshall "has my authority to apply the first Monies he receives on

my acco^t to that Payment."[526] By the end of 1796 Morris's

over-speculations had gravely impaired his fortune. The old financier

writes pathetically to James M. Marshall: "I am struggling hard, very

hard, indeed to regain my Position." He tells his son-in-law that if a

loan cannot be obtained on his other real estate he "expects these

Washington Lotts will be the most certain of any Property to raise

Money on"; and that "[I] will have a number of them Placed under your

Controul."[527]

The loan failed, for the time being, but, writes Morris to John

Marshall, "Mr. Hottenguer[528] who first put the thing in motion says it

will come on again" and succeed; "if so, your brother will, of course,

be ready for Mr. Fairfax." Morris is trying, he says, to raise money

from other sources lest that should fail. "I am here distressed

exceedingly in money matters," continues the harried and aging

speculator "as indeed every body here are but I will immediately make

such exertions as are in my power to place funds with your brother and I

cannot but hope that his and my exertions will produce the needful in

proper time to prevent mischief."[529]

A month later Morris again writes John Marshall that he is "extremely

anxious & fearing that it [the Amsterdam loan] may fall through I am

trying to obtain a loan here for the purposes of your Brother in London.

This," says the now desperate financier, "is extremely difficult, for

those who have money or credit in Europe seem to dread every thing that

is American." He assures John Marshall that he will do his utmost. "My

anxiety ... [to make good the Fairfax purchase] is beyond what I can

express." Alexander Baring "could supply the money ... but he parries

me. He intends soon for the Southward I will introduce him to you."[530]

The title to the Fairfax estate had been the subject of controversy for

many years. Conflicting grants, overlapping boundaries, sequestration

laws, the two treaties with Great Britain, were some of the elements

that produced confusion and uncertainty in the public mind and

especially in the minds of those holding lands within the grant. The

only real and threatening clouds upon the title to the lands purchased

by the Marshall syndicate, however, were the confiscatory laws passed

during the Revolution[531] which the Treaty of Peace and the Jay Treaty

nullified.[532] There were also questions growing out of grants made by

the colonial authorities between 1730 and 1736, but these were not

weighty.

The case of Hunter _vs._ Fairfax, Devisee, involving these questions,

was pending in the Supreme Court of the United States. John Marshall

went to Philadelphia and tried to get the cause advanced and decided.

He was sadly disappointed at his failure and so wrote his brother. "Your

Brother has been here," writes Morris to his son-in-law, "as you will

see by a letter from him forwarded by this conveyance. He could not get

your case brought forward in the Supreme Court of the U. S. at which he

was much dissatisfied & I am much concerned thereat, fearing that real

disadvantage will result to your concern thereby."[533]

The case came on for hearing in regular course during the fall term.

Hunter, on the death of his attorney, Alexander Campbell, prayed the

Court, by letter, for a continuance, which was granted over the protest

of the Fairfax attorneys of record, Lee and Ingersoll of Philadelphia,

who argued that "from the nature of the cause, delay would be worse for

the defendant in error [the Fairfax heir] than a decision adverse to his

claim." The Attorney-General stated that the issue before the Court was

"whether ... the defendant in error being an alien can take and hold the

lands by devise. And it will be contended that his title is completely

protected by the treaty of peace." Mr. Justice Chase remarked: "I

recollect that ... a decision in favor of such a devisee's title was

given by a court in Maryland. It is a matter, however, of great moment

and ought to be deliberately and finally settled."[534] The Marshalls,

of course, stood in the shoes of the Fairfax devisee; had the Supreme

Court decided against the Fairfax title, their contract of purchase

would have been nullified and, while they would not have secured the

estate, they would have been relieved of the Fairfax indebtedness. It

was, then, a very grave matter to the Marshalls, in common with all

others deriving their titles from Fairfax, that the question be settled

quickly and permanently.

A year or two before this purchase by the Marshalls of what remained of

the Fairfax estate, more than two hundred settlers, occupying other

parts of it, petitioned the Legislature of Virginia to quiet their

titles.[535] Acting on these petitions and influenced, perhaps, by the

controversy over the sequestration laws which the Marshall purchase

renewed, the Legislature in 1796 passed a resolution proposing to

compromise the dispute by the State's relinquishing "all claim to any

lands specifically appropriated by ... Lord Fairfax to his own use

either by deed or actual survey ... if the devises of Lord Fairfax, or

those claiming under them, will relinquish all claims to lands ... which

were waste and unappropriated at the time of the death of Lord

Fairfax."[536]

Acting for the purchasing syndicate, John Marshall, in a letter to the

Speaker of the House, accepted this legislative offer of settlement upon

the condition that "an act passes during this session confirming ... the

title of those claiming under Mr. Fairfax the lands specifically

appropriated and reserved by the late Thomas Lord Fairfax or his

ancestors for his or their use."[537]

When advised of what everybody then supposed to be the definitive

settlement of this vexed controversy, Robert Morris wrote John Marshall

that "altho' you were obliged to give up a part of your claim yet it was

probably better to do that than to hold a contest with such an opponent

[State of Virginia]. I will give notice to M^r. Ja^s. Marshall of this

compromise."[538] John Marshall, now sure of the title, and more anxious

than ever to consummate the deal by paying the Fairfax heir, hastened to

Philadelphia to see Morris about the money.

"Your Brother John Marshall Esq^r. is now in this City," writes Robert

Morris to his son-in-law, "and his principal business I believe is to

see how you are provided with Money to pay Lord Fairfax.... I am so

sensible of the necessity there is for your being prepared for Lord

Fairfax's payment that there is nothing within my power that I would not

do to enable you to meet it."[539]

The members of the Marshall syndicate pressed their Philadelphia backer

unremittingly, it appears, for a few days later he answers what seems to

have been a petulant letter from Colston assuring that partner in the

Fairfax transaction that he is doing his utmost to "raise the money to

enable Mr. James Marshall to meet the Payments for your Purchase at

least so far as it is incumbent on me to supply the means.... From the

time named by John Marshall Esq^{re} when here, I feel perfect

Confidence, because I will furnish him before that period with such

Resources & aid as I think cannot fail."[540]

[Illustration: PAGE OF JAMES MARSHALL'S ACCOUNT WITH ROBERT MORRIS

SHOWING PAYMENT OF £7700 TO FAIRFAX (_Facsimile_)]

Finally Marshall's brother negotiated the loan, an achievement which

Morris found "very pleasing, as it enables you to take the first steps

with Lord Fairfax for securing your bargain."[541] Nearly forty thousand

dollars of this loan was thus applied. In his book of accounts with

Morris, James M. Marshall enters: "Jany 25 '97 To £7700 paid the Rev^d.

Denny Fairfax and credited in your [Morris's] account with me 7700"

(English pounds sterling).[542] The total amount which the Marshalls

had agreed to pay for the remnant of the Fairfax estate was "fourteen

thousand pounds British money."[543] When Robert Morris became bankrupt,

payment of the remainder of the Fairfax indebtedness fell on the

shoulders of Marshall and his brother.

This financial burden caused Marshall to break his rule of declining

office and to accept appointment as one of our envoys to France at the

time of Robert Morris's failure and imprisonment for debt; for from that

public employment of less than one year, Marshall, as we shall see,

received in the sorely needed cash, over and above his expenses, three

times the amount of his annual earnings at the bar.[544] "Mr. John

Marshall has said here," relates Jefferson after Marshall's return,

"that had he not been appointed minister [envoy] to France, he was

desperate in his affairs and must have sold his estate [the Fairfax

purchase] & that immediately. That that appointment was the greatest

God-send that could ever have befallen a man."[545] Jefferson adds: "I

have this from J. Brown and S. T. Mason [Senator Mason]."[546]

So it was that Marshall accepted a place on the mission to France[547]

when it was offered to him by Adams, who "by a miracle," as Hamilton

said, had been elected President.[548]

FOOTNOTES:

[456] _Southern Literary Messenger_, 1836, ii, 181-91; also see Howe,

266.

[457] _Southern Literary Messenger_, ii, 181-91; also Howe, 266.

Apparently the older lawyer had been paid the one hundred dollars, for

prepayment was customary in Virginia at the time. (See La Rochefoucauld,

iii, 76.) This tale, fairly well authenticated, is so characteristic of

Marshall that it is important. It visualizes the man as he really was.

(See Jefferson's reference, in his letter to Madison, to Marshall's

"lax, lounging manners," _supra_, 139.)

[458] Story, in Dillon, iii, 363.

[459] Wirt: _The British Spy_, 110-12.

[460] Mazzei's _Recherches sur les États-Unis_, published in this year

(1788) in four volumes.

[461] Marshall himself could not read French at this time. (See _infra_,

chap. VI.)

[462] In this chapter of Marshall's receipts and expenditures all items

are from his Account Book, described in vol. I, chap. V, of this work.

[463] Marshall's third child, Mary, was born Sept. 17, of this year.

[464] La Rochefoucauld, iii, 75-76.

[465] Records, Henrico County, Virginia, Deed Book, iii, 74.

[466] In 1911 the City Council of Richmond presented this house to the

Association for the Preservation of Virginia Antiquities, which now owns

and occupies it.

[467] Mordecai, 63-70; and _ib._, chap. vii.

[468] La Rochefoucauld, iii, 63. Negroes made up one third of the

population.

[469] _Ib._, 64; also Christian, 30.

[470] This celebrated French playwright and adventurer is soon to appear

again at a dramatic moment of Marshall's life. (See _infra_, chaps. VI

to VIII.)

[471] Marshall's bill in equity in the "High Court of Chancery sitting

in Richmond," January 1, 1803; Chamberlin MSS., Boston Public Library.

Marshall, then Chief Justice, personally drew this bill. After the

Fairfax transaction, he seems to have left to his brother and partner,

James M. Marshall, the practical handling of his business affairs.

[472] Memorial of William F. Ast and others; MS. Archives, Va. St. Lib.

[473] Christian, 46.

[474] This company is still doing business in Richmond.

[475] Christian, 46.

[476] The enterprise appears not to have filled the public with

investing enthusiasm and no subscriptions to it were received.

[477] See _infra_, chap. X.

[478] Marshall to James M. Marshall, April 3, 1799; MS. This was the

only one of Marshall's sisters then unmarried. She was twenty years of

age at this time and married Major George Keith Taylor within a few

months. He was a man of unusual ability and high character and became

very successful in his profession. In 1801 he was appointed by President

Adams, United States Judge for a Virginia district. (See _infra_, chap.

XII.) The union of Mr. Taylor and Jane Marshall turned out to be very

happy indeed. (Paxton, 77.)

Compare this letter of Marshall with that of Washington to his niece, in

which he gives extensive advice on the subject of love and marriage.

(Washington to Eleanor Parke Custis, Jan. 16, 1795; _Writings_: Ford,

xiii, 29-32.)

[479] Marshall to Everett, July 22, 1833.

[480] Christian, 28.

[481] _Richmond and Manchester Advertiser_, Sept. 24, 1795.

[482] _Proceedings_ of the M. W. Grand Lodge of Ancient York Masons of

the State of Virginia, from 1778 to 1822, by John Dove, i, 144; see also

121, 139.

[483] See _infra_, chap. X.

[484] See vol. I, chap. V, of this work.

[485] Gilmer, 23-24.

[486] Gustavus Schmidt, in _Louisiana Law Journal_ (1841), 81-82.

[487] For a list of cases argued by Marshall and reported in Call and

Washington, with title of case, date, volume, and page, see Appendix I.

[488] A good illustration of a brilliant display of legal learning by

associate and opposing counsel, and Marshall's distaste for authorities

when he could do without them, is the curious and interesting case of

Coleman _vs._ Dick and Pat, decided in 1793, and reported in 1

Washington, 233. Wickham for appellant and Campbell for appellee cited

ancient laws and treaties as far back as 1662. Marshall cited no

authority whatever.

[489] See Stevens _vs._ Taliaferro, Adm'r, 1 Washington, 155, Spring

Term, 1793.

[490] Johnson _vs._ Bourn, 1 Washington, 187, Spring Term, 1793.

[491] _Ib._

[492] Marshall to Archibald Stuart, March 27, 1794; MS., Va. Hist. Soc.

[493] _Ib._, May 28, 1794.

[494] Munford, 326-38.

[495] See vol. III of this work.

[496] Constitution of the United States, article vi.

[497] _Ib._, article iii, section 2.

[498] The Fairfax deal; see _infra_, 203 _et seq._

[499] Henry, ii, 475.

[500] Howe, 221-22.

[501] 3 Dallas, 256-57, and footnote. In his opinion Justice Iredell

decided for the debtors. When the Supreme Court of the United States, of

which he was a member, reversed him in Philadelphia, the following year,

Justice Iredell, pursuant to a practice then existing, and on the advice

of his brother justices, placed his original opinion on record along

with those of Justices Chase, Paterson, Wilson, and Cushing, each of

whom delivered separate opinions in favor of the British creditors.

[502] For Marshall's argument in the British Debts case before the

Supreme Court, see 3 Dallas, 199-285.

[503] King to Pinckney, Oct. 17, 1797; King, ii, 234-35. King refers to

the British Debts case, the only one in which Marshall had made an

argument before the Supreme Court up to this time.

[504] See _infra_, chap. XI.

[505] Kennedy, ii, 76. Mr. Wirt remembered the argument well; but

twenty-four years having elapsed, he had forgotten the case in which it

was made. He says that it was the Carriage Tax case and that Hamilton

was one of the attorneys. But it was the British Debts case and

Hamilton's name does not appear in the records.

[506] Kennedy, ii, 66. Francis W. Gilmer was then the most brilliant

young lawyer in Virginia. His health became too frail for the hard work

of the law; and his early death was universally mourned as the going out

of the brightest light among the young men of the Old Dominion.

[507] Gilmer, 23-24.

[508] Wirt: _The British Spy_, 112-13.

[509] La Rochefoucauld, iii, 120. Doubtless La Rochefoucauld would have

arrived at the above conclusion in any event, since his estimate of

Marshall is borne out by every contemporary observer; but it is worthy

of note that the Frenchman while in Richmond spent much of his time in

Marshall's company. (_Ib._, 119.)

[510] _Ib._, 75. "The profession of a lawyer is ... one of the most

profitable.... In Virginia the lawyers usually take care to insist on

payment before they proceed in a suit; and this custom is justified by

the general disposition of the inhabitants to pay as little and as

seldom as possible."

[511] Jefferson to Monroe, Feb. 8, 1798; _Works_: Ford, viii, 365.

Marshall was in France at the time. (See _infra_, chaps. VI to VIII

inclusive.)

[512] Story, in Dillon, iii, 354. Ware _vs._ Hylton was argued Feb. 6,

8, 9, 10, 11, and 12. The fight against the bill to carry out the Jay

Treaty did not begin in the National House of Representatives until

March 7, 1796.

[513] Morris to Marshall, May 3, 1796; Morris's Private Letter Book;

MS., Lib. Cong. The stock referred to in this correspondence is probably

that of the Bank of the United States.

[514] Morris to Marshall, June 16, 1796; Morris's Private Letter Book;

MS., Lib. Cong.

[515] Morris to Marshall, Aug. 24, 1796; _ib._

[516] The commission failed and war was narrowly averted by the payment

of a lump sum to Great Britain. It is one of the curious turns of

history that Marshall, as Secretary of State, made the proposition that

finally concluded the matter and that Jefferson consummated the

transaction. (See _infra_, chap. XII.)

[517] Lee means a debtor under the commission. Marshall was a debtor to

Fairfax. (See _infra_.)

[518] Lee to Washington, March 20, 1796; _Cor. Rev._: Sparks, iv,

481-82.

[519] William Bingham of Philadelphia was reputed to be "the richest man

of his time." (Watson: _Annals of Philadelphia_ i. 414.) Chastellux

estimates Morris's wealth at the close of the Revolution at 8,000,000

francs. (Chastellux, 107.) He increased his fortune many fold from the

close of the war to 1796.

The operations of Robert Morris in land were almost without limit. For

instance, one of the smaller items of his purchases was 199,480 acres in

Burke County, North Carolina. (Robert Morris to James M. Marshall, Sept.

24, 1795; Morris's Private Letter Book; MS., Lib. Cong.)

Another example of Morris's scattered and detached deals was his

purchase of a million acres "lying on the western counties of

Virginia ... purchased of William Cary Nicholas.... I do not consider

one shilling sterling as one fourth the real value of the lands.... If,

therefore," writes Morris to James M. Marshall, "a little over £5000

Stg. could be made on this security it would be better than selling

especially at 12^d. per acre." (Robert Morris to James M. Marshall, Oct.

10, 1795; _ib._)

Morris owned at one time or another nearly all of the western half of

New York State. (See Oberholtzer, 301 _et seq._) "You knew of Mr. Robert

Morris's purchase ... of one million, three hundred thousand acres of

land of the State of Massachusetts, at five pence per acre. It is said

he has sold one million two hundred thousand acres of these in Europe."

(Jefferson to Washington, March 27, 1791; _Cor. Rev._: Sparks, iv, 365.)

Patrick Henry acquired considerable holdings which helped to make him,

toward the end of his life, a wealthy man. Washington, who had a keen

eye for land values, became the owner of immense quantities of real

estate. In 1788 he already possessed two hundred thousand acres. (De

Warville, 243.)

[520] Oberholtzer, 266 _et seq._ Hester Morris, at the time of her

marriage to John Marshall's brother, was the second greatest heiress in

America.

[521] Grigsby, i, footnote to 150.

[522] Deed of Lieutenant-General Phillip Martin (the Fairfax heir who

made the final conveyance) to Rawleigh Colston, John Marshall, and James

M. Marshall; Records at Large, Fauquier County (Virginia) Circuit Court,

200 _et seq._ At the time of the contract of purchase, however, the

Fairfax estate was supposed to be very much larger than the quantity of

land conveyed in this deed. It was considerably reduced before the

Marshalls finally secured the title.

[523] Lee is mentioned in all contemporary references to this

transaction as one of the Marshall syndicate, but his name does not

appear in the Morris correspondence nor in the deed of the Fairfax heir

to the Marshall brothers and Colston.

[524] J^s. Marshall to ---- [Edmund Randolph] Jan. 21, 1794; MS.

Archives Department of State. Marshall speaks of dispatches which he is

carrying to Pinckney, then American Minister to Great Britain. This

letter is incorrectly indexed in the Archives as from John Marshall. It

is signed "J^s. Marshall" and is in the handwriting of James M.

Marshall. John Marshall was in Richmond all this year, as his Account

Book shows.

[525] Morris to John Marshall, Nov. 21, 1795; and Aug. 24, 1796;

Morris's Private Letter Book; MS., Lib. Cong.

[526] Morris to Colston, Nov. 11, 1796; _ib._

[527] Robert Morris to James M. Marshall, Dec. 3, 1796; Morris's Private

Letter Book; MS., Lib. Cong. By the expression "Washington Lotts" Morris

refers to his immense real estate speculations on the site of the

proposed National Capital. Morris bought more lots in the newly laid out

"Federal City" than all other purchasers put together. Seven thousand

two hundred and thirty-four lots stood in his name when the site of

Washington was still a primeval forest. (Oberholtzer, 308-12.) Some of

these he afterwards transferred to the Marshall brothers, undoubtedly to

make good his engagement to furnish the money for the Fairfax deal,

which his failure prevented him from advancing entirely in cash. (For

account of Morris's real estate transactions in Washington see La

Rochefoucauld, iii, 622-26.)

[528] This Hottenguer soon appears again in John Marshall's life as one

of Talleyrand's agents who made the corrupt proposals to Marshall,

Pinckney, and Gerry, the American Commissioners to France in the famous

X.Y.Z. transaction of 1797-98. (See _infra_, chaps. VI to VIII.)

[529] Robert Morris to John Marshall, Dec. 30, 1796; Morris's Private

Letter Book; MS., Lib. Cong.

[530] Morris to John Marshall, Jan. 23, 1797; Morris's Private Letter

Book; MS., Lib. Cong.

[531] Hening, ix, chap. ix, 377 _et seq._; also _ib._, x, chap. xiv, 66

_et seq._; xi, chap. xliv, 75-76; xi, chap. xlv, 176 _et seq._; xi,

chap. xlvii, 81 _et seq._; xi, chap. xxx, 349 _et seq._

[532] Such effect of these treaties was not yet conceded, however.

[533] Morris to James M. Marshall, March 4, 1796; Morris's Private

Letter Book; MS., Lib. Cong.

[534] Hunter _vs._ Fairfax, Devisee, 3 Dallas, 303, and footnote.

[535] Originals in Archives of Virginia State Library. Most of the

petitions were by Germans, many of their signatures being in German

script. They set forth their sufferings and hardships, their good faith,

loss of papers, death of witnesses, etc.

[536] Laws of Virginia, Revised Code (1819), i, 352.

[537] Laws of Virginia, Revised Code (1819), i, 352. Marshall's letter

accepting the proposal of compromise is as follows:--

"RICHMOND, November 24th, 1796.

"SIR, being one of the purchasers of the lands of Mr. Fairfax, and

authorized to act for them all, I have considered the resolution of

the General Assembly on the petitions of sundry inhabitants of the

counties of Hampshire, Hardy, and Shenandoah, and have determined

to accede to the proposition it contains.

"So soon as the conveyance shall be transmitted to me from Mr.

Fairfax, deeds extinguishing his title to the waste and unappropriated

lands in the Northern Neck shall be executed, provided an act passes

during this session, confirming, on the execution of such deeds, the

title of those claiming under Mr. Fairfax the lands specifically

appropriated and reserved by the late Thomas Lord Fairfax, or his

ancestors, for his or their use.

"I remain Sir, with much respect and esteem,

"Your obedient servant, JOHN MARSHALL.

"The Honorable, the Speaker of the House of Delegates."

(Laws of Virginia.)

[538] Morris to John Marshall, Dec. 30, 1796; Morris's Private Letter

Book; MS., Lib. Cong.

[539] Morris to James M. Marshall, Feb. 10, 1797; Morris's Private

Letter Book; MS., Lib. Cong. Morris adds that "I mortgaged to Col^o.

Hamilton 100,000 acres of Genesee Lands to secure payment of $75,000 to

Mr. Church in five years. This land is worth at this moment in Cash two

Dollars pr Acre."

[540] Morris to Colston, Feb. 25, 1797; _ib._

[541] Morris to James M. Marshall, April 27, 1797; _ib._

[542] MS. The entry was made in Amsterdam and Morris learned of the loan

three months afterwards.

[543] Records at Large in Clerk's Office of Circuit Court of Fauquier

County, Virginia, 200 _et seq._ The deed was not filed until 1806, at

which time, undoubtedly, the Marshalls made their last payment.

[544] See _infra_, chap. VIII. It was probably this obligation too, that

induced Marshall, a few years later, to undertake the heavy task of

writing the _Life of Washington_, quite as much as his passionate

devotion to that greatest of Americans. (See vol. III of this work.)

[545] "Anas," March 21, 1800; _Works_: Ford, i, 355.

[546] _Ib._ Misleading as Jefferson's "Anas" is, his information in this

matter was indisputably accurate.

[547] See _infra_, chap. VI. A short time before the place on the French

mission was tendered Marshall, his father in Kentucky resigned the

office of Supervisor of Revenue for the District of Ohio. In his letter

of resignation Thomas Marshall gives a résumé of his experiences as an

official under Washington's Administrations. Since this is one of the

only two existing letters of Marshall's father on political subjects,

and because it may have turned Adams's mind to John Marshall, it is

worthy of reproduction:--

SIR,

Having determined to resign my Commission as Supervisor of the

Revenue for the district of Ohio, on the 30th day of June next,

which terminates the present fiscal year, I have thought it right

to give this timely notice to you as President of the United

States, in whom the nomination and appointment of my successor is

vested; in order that you may in the meantime select some fit

person to fill the office. You will therefore be pleased to

consider me as out of office on the first day of July ensuing.

It may possibly be a subject of enquiry, why, after holding the

office during the most critical & troublesome times, I should now

resign it, when I am no longer insulted, and abused, for

endeavoring to execute the Laws of my Country--when those Laws

appear to be, more than formerly, respected--and when the

probability is, that in future they may be carried into effect

with but little difficulty?

In truth this very change, among other considerations, furnishes

a reason for the decision I have made. For having once engaged in

the business of revenue I presently found myself of sufficient

importance with the enemies of the Government here to be made an

object of their particular malevolence--and while this was the

case, I was determined not to be driven from my post.

At this time, advanced in years and declining in health, I find

myself unfit for the cares, and active duties of the office; and

therefore cheerfully resign a situation, which I at first

accepted and afterwards held, more from an attachment to the

Government, than from any pecuniary consideration, to be filled

by some more active officer, as still more conducive to the

public service.

To the late President I had the honor of being known, and

combined, with respect and veneration for his public character,

the more social and ardent affections of the man, and of the

friend.

You Sir I have not the honor to know personally, but you have

filled too many important stations in the service of your

country; & fame has been too busy with your name to permit me to

remain ignorant of your character; for which in all its public

relations permit me to say, I feel the most entire respect and

esteem: Nor is it to me among the smallest motives for my

rejoicing that you are the President; and of my attachment to

your administration to know that you have ever been on terms of

friendship with the late President--that you have approved his

administration,--and that you propose to yourself his conduct as

an example for your imitation.

On this occasion I may say without vanity that I have formerly

and not infrequently, given ample testimony of my attachment to

Republican Government, to the peace, liberty and happiness of my

country and that it is not now to be supposed that I have changed

my principles--or can esteem those who possess different ones.

And altho' I am too old [Thomas Marshall was nearly sixty-five

years of age when he wrote this letter] and infirm for active

services, (for which I pray our country may not feel a call) yet

my voice shall ever be excited in opposition to foreign

influence, (from whence the greatest danger seems to threaten, as

well as against internal foes) and in support of a manly, firm,

and independent, exercise of those constitutional rights, which

belong to the President, and Government of the United States.

And, _even opinions_, have their effect.

I am Sir with the most

JOHN ADAMS, ESQ. entire respect and esteem

President of the Your very humble Servt,

United States. T. MARSHALL.

(Thomas Marshall to Adams, April 28, 1797; MS., Dept. of State.)

[548] See _infra_, chaps. XI and XII.