2: Marshall's Early Years
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John Marshall was born on September 24, 1755, in Fauquier County,
Virginia. Though like Jefferson he was descended on his mother's
side from the Randolphs of Turkey Island, colonial grandees who
were also progenitors of John Randolph, Edmund Randolph, and
Robert E. Lee, his father, Thomas Marshall, was "a planter of
narrow fortune" and modest lineage and a pioneer. Fauquier was
then on the frontier, and a few years after John was born the
family moved still farther westward to a place called "The
Hollow," a small depression on the eastern slope of the Blue
Ridge. The external furnishings of the boy's life were extremely
primitive, a fact which Marshall used later to recall by relating
that his mother and sisters used thorns for buttons and that hot
mush flavored with balm leaf was regarded as a very special dish.
Neighbors of course, were few and far between, but society was
not lacking for all that. As the first of fifteen children, all
of whom reached maturity, John found ample opportunity to
cultivate that affectionate helpfulness and gayety of spirit
which in after years even enemies accounted one of his most
notable traits.
Among the various influences which, during the plastic years of
boyhood and youth, went to shape the outlook of the future Chief
Justice high rank must be accorded his pioneer life. It is not
merely that the spirit of the frontier, with its independence of
precedent and its audacity of initiative, breathes through his
great constitutional decisions, but also that in being of the
frontier Marshall escaped being something else. Had he been born
in lowland Virginia, he would have imbibed the intense localism
and individualism of the great plantation, and with his turn of
mind might well have filled the role of Calhoun instead of that
very different role he actually did fill. There was, indeed, one
great planter with whom young Marshall was thrown into occasional
contact, and that was his father's patron and patron saint,
Washington. The appeal made to the lad's imagination by the great
Virginian, was deep and abiding. And it goes without saying that
the horizons suggested by the fame of Fort Venango and Fort
Duquesne were not those of seaboard Virginia but of America.
Many are the great men who have owed their debt to a mother's
loving helpfulness and alert understanding. Marshall, on the
other hand, was his father's child. "My father," he was wont to
declare in after years, "was a far abler man than any of his
sons. To him I owe the solid foundations of all my success in
life." What were these solid foundations? One was a superb
physical constitution; another was a taste for intellectual
delights; and to the upbuilding of both these in his son, Thomas
Marshall devoted himself with enthusiasm and masculine good
sense, aided on the one hand by a very select library consisting
of Shakespeare, Milton, Dryden, and Pope, and on the other by the
ever fresh invitation of the mountainside to healthgiving sports.
Pope was the lad's especial textbook, and we are told that he had
transcribed the whole of the "Essay on Man" by the time he was
twelve and some of the "Moral Essays" as well, besides having
"committed to memory many of the most interesting passages of
that distinguished poet." The result is to be partially discerned
many years later in certain tricks of Marshall's style; but
indeed the influence of the great moralist must have penetrated
far deeper. The "Essay on Man" filled, we may surmise, much the
same place in the education of the first generation of American
judges that Herbert Spencer's "Social Statics" filled in that of
the judges of a later day. The "Essay on Man" pictures the
universe as a species of constitutional monarchy governed "not by
partial but by general laws"; in "man's imperial race" this
beneficent sway expresses itself in two principles," self-love to
urge, and reason to restrain"; instructed by reason, self-love
lies at the basis of all human institutions, the state,
government, laws, and has "found the private in the public good";
so, on the whole, justice is the inevitable law of life.
"Whatever is, is right." It is interesting to suppose that while
Marshall was committing to memory the complacent lines of the
"Essay on Man," his cousin Jefferson may have been deep in the
"Essay on the Origin of Inequality."
At the age of fourteen Marshall was placed for a few months under
the tuition of a clergyman named Campbell, who taught him the
rudiments of Latin and introduced him to Livy, Cicero, and
Horace. A little later the great debate over American rights
burst forth and became with Marshall, as with so many promising
lads of the time, the decisive factor in determining his
intellectual bent, and he now began reading Blackstone. The great
British orators, however, whose eloquence had so much to do, for
instance, with shaping Webster's genius, came too late to
influence him greatly.
The part which the War of Independence had in shaping the ideas
and the destiny of John Marshall was most important. As the news
of Lexington and Bunker Hill passed the Potomac, he was among the
first to spring to arms. His services at the siege of Norfolk,
the battles of Brandywine, Germantown, and Monmouth, and his
share in the rigors of Valley Forge and in the capture of Stony
Point, made him an American before he had ever had time to become
a Virginian. As he himself wrote long afterwards: "I had grown up
at a time when the love of the Union and the resistance to Great
Britain were the inseparable inmates of the same bosom; ...when
the maxim 'United we stand, divided we fall' was the maxim of
every orthodox American. And I had imbibed these sentiments so
thoroughly that they constituted a part of my being. I carried
them with me into the army, where I found myself associated with
brave men from different States, who were risking life and
everything valuable in a common cause believed by all to be most
precious, and where I was confirmed in the habit of considering
America as my country and Congress as my government."
Love of country, however, was not the only quality which
soldiering developed in Marshall. The cheerfulness and courage
which illuminated his patriotism brought him popularity among
men. Though but a lieutenant, he was presently made a deputy
judge advocate. In this position he displayed notable talent in
adjusting differences between officers and men and also became
acquainted with Washington's brilliant young secretary, Alexander
Hamilton.
While still in active service in 1780, Marshall attended a course
of law lectures given by George Wythe at William and Mary
College. He owed this opportunity to Jefferson, who was then
Governor of the State and who had obtained the abolition of the
chair of divinity at the college and the introduction of a course
in law and another in medicine. Whether the future Chief Justice
was prepared to take full advantage of the opportunity thus
offered is, however, a question. He had just fallen heels over
head in love with Mary Ambler, whom three years later he married,
and his notebook seems to show us that his thoughts were quite as
much upon his sweetheart as upon the lecturer's wisdom.
None the less, as soon as the Courts of Virginia reopened, upon
the capitulation of Cornwallis, Marshall hung out his shingle at
Richmond and began the practice of his profession. The new
capital was still hardly more than an outpost on the frontier,
and conditions of living were rude in the extreme. "The Capitol
itself," we are told, "was an ugly structure—'a mere wooden
barn'—on an unlovely site at the foot of a hill. The private
dwellings scattered about were poor, mean, little wooden houses."
"Main Street was still unpaved, deep with dust when dry and so
muddy during a rainy season that wagons sank up to the axles." It
ended in gullies and swamps. Trade, which was still in the hands
of the British merchants, involved for the most part transactions
in skins, furs, ginseng, snakeroot, and "dried rattlesnakes—used
to make a viper broth for consumptive patients." "There was but
one church building and attendance was scanty and infrequent."
Not so, however, of Farmicola's tavern, whither card playing,
drinking, and ribaldry drew crowds, especially when the
legislature was in session.1
But there was one institution of which Richmond could boast, even
in comparison with New York, Boston, or Philadelphia, and that
was its Bar. Randolph, Wickham, Campbell, Call, Pendleton,
Wythe—these are names whose fame still survives wherever the
history of the American Bar is cherished; and it was with their
living bearers that young Marshall now entered into competition.
The result is somewhat astonishing at first consideration, for
even by the standards of his own day, when digests, indices, and
the other numerous aids which now ease the path of the young
attorney were generally lacking, his preparation had been slight.
Several circumstances, however, came to his rescue. So soon after
the Revolution British precedents were naturally rather out of
favor, while on the other hand many of the questions which found
their way into the courts were those peculiar to a new country
and so were without applicable precedents for their solution.
What was chiefly demanded of an attorney in this situation was a
capacity for attention, the ability to analyze an opponent's
argument, and a discerning eye for fundamental issues. Competent
observers soon made the discovery that young Marshall possessed
all these faculties to a marked degree and, what was just as
important, his modesty made recognition by his elders easy and
gracious.
>From 1782 until the adoption of the Constitution,Marshall was
almost continuously a member of the Virginia Legislature. He
thus became a witness of that course of policy which throughout
this period daily rendered the state governments more and more
"the hope of their enemies, the despair of their friends." The
termination of hostilities against England had relaxed the
already feeble bonds connecting the States. Congress had powers
which were only recommendatory, and its recommendations were
ignored by the local legislatures. The army, unpaid and
frequently in actual distress, was so rapidly losing its morale
that it might easily become a prey to demagogues. The treaties of
the new nation were flouted by every State in the Union. Tariff
wars and conflicting land grants embittered the relations of
sister States. The foreign trade of the country, it was asserted, "was
regulated, taxed, monopolized, and crippled at the pleasure of
the maritime powers of Europe." Burdened with debts which were the
legacy of an era of speculation, a considerable part of the
population, especially of the farmer class, was demanding
measures of relief which threatened the security of contracts. "Laws
suspending the collection of debts, insolvent laws, instalment
laws, tender laws, and other expedients of a like nature, were
familiarly adopted or openly and boldly vindicated.2
>From the outset Marshall ranged himself on the side of that
party in the Virginia Legislature which, under the leadership of
Madison, demanded with growing insistence a general and radical
constitutional reform designed at once to strengthen the national
power and to curtail state legislative power. His attitude was
determined not only by his sympathy for the sufferings of his
former comrades in arms and by his veneration for his father and
for Washington, who were of the same party, but also by his
military experience, which had rendered the pretensions of state
sovereignty ridiculous in his eyes. Local discontent came to a
head in the autumn of 1786 with the outbreak of Shays's Rebellion
in western Massachusetts. Marshall, along with the great body of
public men of the day, conceived for the movement the gravest
alarm, and the more so since he considered it as the natural
culmination of prevailing tendencies. In a letter to James
Wilkinson early in 1787, he wrote: "These violent...dissensions
in a State I had thought inferior in wisdom and virtue to no one
in our Union, added to the strong tendency which the politics of
many eminent characters among ourselves have to promote private
and public dishonesty, cast a deep shade over that bright
prospect
which the Revolution in America and the establishment of our free
governments had opened to the votaries of liberty throughout the
globe. I fear, and there is no opinion more degrading to the
dignity of man, that those have truth on their side who say that
man is incapable of governing himself."
Marshall accordingly championed the adoption of the Constitution
of 1787 quite as much because of its provisions for diminishing
the legislative powers of the States in the interest of private
rights as because of its provisions for augmenting the powers of
the General Government. His attitude is revealed, for instance,
in the opening words of his first speech on the floor of the
Virginia Convention, to which he had been chosen a member from
Richmond : "Mr. Chairman, I conceive that the object of the
discussion now before us is whether democracy or despotism be
most eligible.... The supporters of the Constitution claim
the title of being firm friends of liberty and the rights of man
....We prefer this system because we think it a well-regulated
democracy.... What are the favorite maxims of democracy? A strict
observance of justice and public faith....Would to Heaven that
these principles had been observed under the present government.
Had this been the case the friends of liberty would not be
willing now to part with it." The point of view which Marshall
here assumed was obviously the same as that from which Madison,
Hamilton, Wilson, and others on the floor of the Federal
Convention had freely predicted that republican liberty must
disappear from the earth unless the abuses of it practiced in
many of the States could be eliminated.
Marshall's services in behalf of the Constitution in the closely
fought battle for ratification which took place in the Virginia
Convention are only partially disclosed in the pages of Elliot's
"Debates." He was already coming to be regarded as one excellent
in council as well as in formal discussion, and his democratic
manners and personal popularity with all classes were a
pronounced asset for any cause he chose to espouse. Marshall's
part on the floor of the Convention was, of course, much less
conspicuous than that of either Madison or Randolph, but in the
second rank of the Constitution's defenders, including men like
Corbin, Nicholas, and Pendleton, he stood foremost. His remarks
were naturally shaped first of all to meet the immediate
necessities of the occasion, but now and then they foreshadow
views of a more enduring value. For example, he met a favorite
contention of the opposition by saying that arguments based on
the assumption that necessary powers would be abused were
arguments against government in general and "a recommendation of
anarchy." To Henry's despairing cry that the proposed system
lacked checks, he replied: "What has become of his enthusiastic
eulogium of the American spirit? We should find a check and
control, when oppressed, from that source. In this country there
is no exclusive personal stock of interest. The interest of the
community is blended and inseparably connected with that of the
individual.... When we consult the common good, we consult our
own." And when Henry argued that a vigorous union was unnecessary
because "we are separated by the sea from the powers of Europe,"
Marshall replied: "Sir, the sea makes them neighbors of us."
It is worthy of note that Marshall gave his greatest attention to
the judiciary article as it appeared in the proposed
Constitution. He pointed out that the principle of judicial
independence was here better safeguarded than in the Constitution
of Virginia. He stated in one breath the principle of judicial
review and the doctrine of enumerated powers. If, said he,
Congress "make a law not warranted by any of the powers
enumerated, it would be considered by the judges as an
infringement of the Constitution which they are to guard; they
would not consider such a law as coming within their
jurisdiction. They would declare it void."3 On the other hand,
Marshall scoffed at the idea that the citizen of a State might
bring an original action against another State in the Supreme
Court. His dissections of Mason's and Henry's arguments
frequently exhibit controversial skill of a high order. From
Henry, indeed, Marshall drew a notable tribute to his talent,
which was at the same time proof of his ability to keep friends
with his enemies.
On the day the great Judiciary Act became law, Marshall attained
his thirty-fourth year. His stride toward professional and
political prominence was now rapid. At the same time his private
interests were becoming more closely interwoven with his
political principles and personal affiliations, and his talents
were maturing. Hitherto his outlook upon life had been derived
largely from older men, but his own individuality now began to
assert itself; his groove in life was taking final shape.
The best description of Marshall shows him in the prime of his
manhood a few months after his accession to the Supreme Bench. It
appears in William Wirt's celebrated "Letters of the British
Spy":
"The [Chief Justice] of the United States is, in his person,
tall, meager, 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, give him the appearance of a man of
fifty years of age, nor can he be much younger; 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."
The "British Spy" then describes Marshall's personality as an
orator at the time when he was still practicing at the Virginia
bar:
"His voice [the description continues] is dry and hard; his
attitude, in his most effective orations, was often extremely
awkward, as it was not unusual for him to stand with his left
foot in advance, while all his gestures 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.... [Nevertheless] if eloquence
may be said to consist in the power of seizing the attention with
irresistible force, and never permitting it to elude the grasp
until the hearer has received the conviction which the speaker
intends, [then] this extraordinary man, without the aid of fancy,
without the advantages of person, voice, attitude, gesture, or
any of the ornaments of an orator, deserves to be considered as
one of the most eloquent men in the world.... He 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 eyes
do not fly over a landscape and take in its various objects with
more promptitude and facility, than his mind embraces and
analyzes the most complex subject.
"Possessing while at the bar this intellectual elevation, which
enables 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.
"All his eloquence consists in the apparently deep
self-conviction, and emphatic earnestness of his manner, the
correspondent simplicity and energy of his style; the close and
logical connexion of his thoughts; and the easy gradations by
which he opens his lights on the attentive minds of his hearers.
"The audience are never permitted to pause for a moment. There is
no stopping to weave garlands of flowers, to hang in festoons,
around a favorite argument. On the contrary, every sentence is
progressive; every idea sheds new light on the subject; the
listener is kept perpetually in that sweetly pleasurable
vibration, with which the mind of man always receives new truths;
the dawn advances in easy but unremitting pace; the subject opens
gradually on the view; until, rising in high relief, in all its
native colors and proportions, the argument is consummated by the
conviction of the delighted hearer."
What appeared to Marshall's friends as most likely in his early
middle years to stand in the way of his advancement was his
addiction to ease and to a somewhat excessive conviviality. But
it is worth noting that the charge of conviviality was never
repeated after he was appointed Chief Justice; and as to his
unstudious habits, therein perhaps lay one of the causes
contributing to his achievement. Both as attorney and as judge,
he preferred the quest of broad, underlying principles, and, with
plenty of time for recuperation from each exertion, he was able
to bring to each successive task undiminished vitality and
unclouded attention. What the author of the "Leviathan" remarks
of himself may well be repeated of Marshall—that he made more
use of his brains than of his bookshelves and that, if he had
read as much as most men, he would have been as ignorant as they.
That Marshall was one of the leading members of his profession in
Virginia, the most recent biographical researches unmistakably
prove. "From 1790 until his election to Congress nine years
later," Albert J. Beveridge4 writes, "Marshall argued 113 cases
decided by the court of appeals of Virginia.... He appeared
during this time in practically every important cause heard and
determined by the supreme tribunal of the State." Practically all
this litigation concerned property rights, and much of it was
exceedingly intricate. Marshall's biographer also points out the
interesting fact that "whenever there was more than one attorney
for the client who retained Marshall, the latter almost
invariably was retained to make the closing argument." He was
thus able to make good any lack of knowledge of the technical
issues involved as well as to bring his great debating powers to
bear with the best advantage.
4The Life of John Marshall, vol. II, p. 177.
Meanwhile Marshall was also rising into political prominence.
>From the first a supporter of Washington's Administration, he
was
gradually thrust into the position of Federalist leader in
Virginia. In 1794 he declined the post of Attorney-General, which
Washington had offered him. In the following year he became
involved in the acrimonious struggle over the Jay Treaty with
Great Britain, and both in the Legislature and before meetings of
citizens defended the treaty so aggressively that its opponents
were finally forced to abandon their contention that it was
unconstitutional and to content themselves with a simple denial
that it was expedient. Early in 1796 Marshall made his first
appearance before the Supreme Court, in the case of Ware vs.
Hylton. The fame of his defense of "the British Treaty" during
the previous year had preceded him, and his reception by the
Federalist leaders from New York and New England was notably
cordial. His argument before the Court, too, though it did not in
the end prevail, added greatly to his reputation. "His head,"
said Rufus King, who heard the argument, "is one of the best
organized of any one that I have known."
Either in 1793 or early in the following year, Marshall
participated in a business transaction which, though it did not
impart to his political and constitutional views their original
bent, yet must have operated more or less to confirm his
opinions. A syndicate composed of Marshall, one of his brothers,
and two other gentlemen, purchased from the British heirs what
remained of the great Fairfax estate in the Northern Neck, a
tract "embracing over 160,000 acres of the best land in
Virginia." By an Act passed during the Revolution, Virginia had
decreed the confiscation of all lands held by British subjects;
and though the State had never prosecuted the forfeiture of this
particular estate, she was always threatening to do so.
Marshall's investment thus came to occupy for many years a
precarious legal footing which, it may be surmised, did not a
little to keep alert his natural sympathy for all victims of
legislative oppression. Moreover the business relation which he
formed with Robert Morris in financing the investment brought him
into personal contact for the first time with the interests
behind Hamilton's financial program, the constitutionality of
which he had already defended on the hustings.
It was due also to this business venture that Marshall was at
last persuaded to break through his rule of declining office and
to accept appointment in 1797, together with Pinckney and Gerry,
on the famous "X.Y.Z." mission to France. From this single year's
employment he obtained nearly $20,000, which, says his
biographer, "over and above his expenses," was "three times his
annual earnings at the bar"; and the money came just in the nick
of time to save the Fairfax investment, for Morris was now
bankrupt and in jail. But not less important as a result of his
services was the enhanced reputation which Marshall's
correspondence with Talleyrand brought him. His return to
Philadelphia was a popular triumph, and even Jefferson,
temporarily discomfited by the "X.Y.Z." disclosures, found it
discreet to go through the form of paying him court—whereby
hangs a tale. Jefferson called at Marshall's tavern. Marshall was
out. Jefferson thereupon left a card deploring how "un/lucky" he
had been. Commenting years afterwards upon the occurrence,
Marshall remarked that this was one time at least when Jefferson
came near telling the truth.
Through the warm insistence of Washington, Marshall was finally
persuaded in the spring of 1799 to stand as Federalist candidate
for Congress in the Richmond district. The expression of his
views at this time is significant. A correspondent of an
Alexandria newspaper signing himself "Freeholder" put to him a
number of questions intended to call forth Marshall's opinions on
the issues of the day. In answering a query as to whether he
favored an alliance with Great Britain, the candidate declared
that the whole of his "politics respecting foreign nations" was
"reducible to this single position.... Commercial intercourse
with all, but political ties with none." But a more pressing
issue on which the public wished information was that furnished
by the Alien and Sedition laws, which Marshall had originally
criticized on grounds both of expediency and of
constitutionality. Now, however, he defended these measures on
constitutional grounds, taking the latitudinarian position that
"powers necessary for the attainment of all objects which are
general in their nature, which interest all America, ...would
be naturally vested in the Government of the whole," but he
declared himself strongly opposed to their renewal. At the same
time he denounced the Virginia Resolutions as calculated "to sap
the foundations of our Union."
The election was held late in April, under conditions which must
have added greatly to popular interest. Following the custom in
Virginia, the voter, instead of casting a ballot, merely declared
his preference in the presence of the candidates, the election
officials, and the assembled multitude. In the intensity of the
struggle no voter, halt, lame, or blind, was overlooked; and a
barrel of whisky near at hand lent further zest to the occasion.
Time and again the vote in the district was a tie, and as a
result frequent personal encounters took place between aroused
partisans. Marshall's election by a narrow majority in a borough
which was strongly pro-Jeffersonian was due, indeed, not to his
principles but to his personal popularity and to the support
which he received from Patrick Henry, the former Governor of the
State.
The most notable event of his brief stay in Congress was his
successful defense of President Adams's action in handing over to
the British authorities, in conformity with the twenty-seventh
article of the Jay treaty, Jonathan Robins, who was alleged to be
a fugitive from justice. Adams's critics charged him with having
usurped a judicial function. "The President," said Marshall in
reply, "is sole organ of the nation in its external relations,
and its sole representative with foreign nations. Of consequence,
the demand of a foreign nation can only be made on him. He
possesses the whole executive power. He holds and directs the
force of the nation. Of consequence, any act to be performed by
the force of the nation is to be performed through him. He is
charged to execute the laws. A treaty is declared to be a law. He
must then execute a treaty where he, and he alone, possesses the
means of executing it." This is one of the few speeches ever
uttered on the floor of Congress which demonstrably made votes.
Gallatin, who had been set to answer Marshall, threw up his
brief; and the resolutions against the President were defeated by
a House hostile to him.
Marshall's course in Congress was characterized throughout by
independence of character, moderation of views, and level good
sense, of which his various congressional activities afford
abundant evidence. Though he had himself been one of the "X.Y.Z."
mission, Marshall now warmly supported Adams's policy of renewing
diplomatic relations with France. He took his political life in
his hands to register a vote against the Sedition Act, a proposal
to repeal which was brought before the House. He foiled a scheme
which his party associates had devised, in view of the
approaching presidential election, to transfer to a congressional
committee the final authority in canvassing the electoral vote—a
plan all too likely to precipitate civil war. His Federalist
brethren of the extreme Hamiltonian type quite resented the
frequency with which he was wont to kick over the party traces.
"He is disposed," wrote Sedgwick, the Speaker, "to express great
respect for the sovereign people and to quote their opinions as
an evidence of truth," which "is of all things the most
destructive of personal independence and of that weight of
character which a great man ought to possess."5
Marshall had now come to be practically indispensable to the
isolated President, at whose most earnest insistence he entered
the Cabinet as Secretary of State, though he had previously
declined to become Secretary of War. The presidential campaign
was the engrossing interest of the year, and as it spread its
"havoc of virulence" throughout the country, Federalists of both
factions seemed to turn to Marshall in the hope that, by some
miracle of conciliation, he could save the day. The hope proved
groundless, however, and all that was ultimately left the party
which had founded the Government was to choose a President from
the rival leaders of the opposition. Of these Marshall preferred
Burr, because, as he explained, he knew Jefferson's principles
better. Besides having foreign prejudices, Mr. Jefferson, he
continued, "appears to me to be a man who will embody himself
with the House of Representatives, and by weakening the office of
President, he will increase his personal power." Better political
prophecy has, indeed, rarely been penned. Deferring nevertheless
to Hamilton's insistence—and, as events were to prove, to his
superior wisdom—Marshall kept aloof from the fight in the House,
and his implacable foe was elected.
Marshall was already one of the eminent men of the country when
Adams, without consulting him, nominated him for Chief Justice.
He stood at the head of the Virginia bar; he was the most
generally trusted leader of his party; he already had a national
reputation as an interpreter of the Constitution. Yet his
appointment as Chief Justice aroused criticism even among his
party friends. Their doubt did not touch his intellectual
attainments, but in their opinion his political moderation, his
essential democracy, his personal amiability, all counted against
him. "He is," wrote Sedgwick, "a man of very affectionate
disposition, of great simplicity of manners, and honest and
honorable in all his conduct. He is attached to pleasures, with
convivial habits strongly fixed. He is indolent therefore. He has
a strong attachment to popularity but is indisposed to sacrifice
to it his integrity; hence he is disposed on all popular subjects
to feel the public pulse, and hence results indecision and an expression of doubt."6
It was perhaps fortunate for the Federal Judiciary, of which he
was now to take command, that John Marshall was on occasion
"disposed...to feel the public pulse." A headstrong pilot
might speedily have dashed his craft on the rocks; a timid, one
would have abandoned his course; but Marshall did neither. The
better answer to Sedgwick's fears was given in 1805 when John
Randolph declared that Marshall's "real worth was never known
until he was appointed Chief Justice." And Sedgwick is further
confuted by the portraits of the Chief Justice, which, with all
their diversity, are in accord on that stubborn chin, that firm
placid mouth, that steady, benignant gaze, so capable of putting
attorneys out of countenance when they had to face it overlong.
Here are the lineaments of self-confidence unmarred by vanity, of
dignity without condescension, of tenacity untouched by
fanaticism, and above all, of an easy conscience and unruffled
serenity. It required the lodestone of a great and thoroughly
congenial responsibility to bring to light Marshall's real metal.
__________
1Beveridge, vol. I, pp. 171-73.
2This review of conditions under the later Confederation is
taken from Story's "Discourse," which is in turn based, at this
point, on Marshall's "Life of Washington" and certain letters of
his to Story.
3J. Elliot, Debates (Edition of 1836), vol. III, p. 503. As to
Bills of Rights, however, Marshall expressed the opinion that
they were meant to be "merely recommendatory. Were it otherwise,
...many laws which are found convenient would be
unconstitutional."
Op. cit., vol.III, p. 509.
5Letter from Sedgwick to King, May 11, 1800. Life and
Correspondence of Rufus King, vol. III, pp. 236-7.
6Op. cit.
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