iiiiiil •11 "iiiii iiiii !iii^ rMUttf i«<*ltt»iH««t«tl I. . .■ij:it:mtnttti |; ,*■*■ r' Sc I COPIED BY rERMiSflON FROM A PAINTING BY HENRY INMAN, THE FR3PERTY OF THE lAW ASSO. OF FHILA. y^^^ji<6^i \ THE LIFE OF John Marshall BY HENRY FLANDERS of tHe PHiladelpHia Bar A.\»thor of "An £^xposition of the Con^'iio ion of the UnitecL States," "The Lives and T 'S of the Chief Justices of the Unit a states, " etc. PHILADELPHIA T. & J. ^W. JOHNSON & CO. 1005 Publishers' Note. The constantly increasing interest in the life and services of Marshall make it appropriate at this time to issue in a single volume the excellent work by Mr. Flanders. Originally issued in the author's " Lives and Times of the Chief Justices of the United States," Flanders' " Life of Marshall " has been generally acknowledged as one of the most comprehensive and authentic written, and has been variously re- ferred to and quoted. The publishers have thus been induced to think that, revised and reissued in separate form, this standard Life of Marshall would be a convenience to the reading public. Hence the present volume. As a frontispiece is given an engraving repro- ducing the celebrated Inman portrait, which is gen- erally regarded as the most satisfactory. It shows the Chief Justice in the later years of his life, and the original portrait, painted at the request of the Law Association of Philadelphia, may be seen in the library of the Association. CONTENTS LIFE OF JOHN MARSHALL, CHAPTEE I His Ancestry — His father, Thomas Marshall — The Chief Justice's affec- tion for — Marriage of Thomas Marshall 1-3 CHAPTER II. His Birth and Education — Taught by his Father — Imbibes a love of litera- ture — His early life — Goes to reside with the Rev. Mr. Campbell — Absent a year — Studies Latin — Returns Home and continues his studies with the Rev. Mr. Thompson — Extent of his Classical tuition — His father superintends his English education — Effect of Scenery upon — Style of living — Fond of athletic Exercises — Begins the study of the Law , 4_7 CHAPTER III. 1775—1780. His Military services — Difficulties with England — Political sentiments of young Marshall — Appointed Lieutenant of a Militia company — Pro- ceedings of Lord Dunmore — Effect of — Description of young Mar- shall — Minnte-men — Their appearance — Lord Dunmore's apprehen- sion of — He flies on board a Man-of-war — Proceedings of — Action at the Great Bridge — Marshall engaged in — Appointed a Lieutenant in 11th Virginia Regiment — Sent to the North — Joins the Army at Morristown — Condition of the Army — Marshall appointed Captain — Gloomy period of the war — His services— The Battle of Brandywine — Of Germantown — Valley Forge — Marshall's messmates — Their suffer- ings — His good temper — Acts as Deputy Judge Advocate— Acquaint- ance with Hamilton — Evacuation of Philadelphia — Battle of Mon- mouth — Assault of Stony Point — Powle's Hook — His return to Vir- ginia — Invasion of that State — Resigns his Commission 8-22 vii viii CONTENTS. CHAPTER IV. 1781 — 1799 His Practice at the Bar — Resumes his Legal studies — Journey to Phila- delphia on foot — Refused admittance into a Public-house — Begins his Practice in Fauquier — His legal acquirements — His success — To what owing — His dress and personal appearance — Anecdote — His qualities as a Lawyer and Advocate — Business of the Courts — Charac- ter of — Case of Ware vs. Hylton — The Countess of Huntington — Pat- rick Henry — Anecdote — Marshall's argument — Alexander Campbell — The Duke de Liancourt — His description of Marshall — Political principles of Marshall — " Propensity to Indolence" 23^1 CHAPTER V. 1782 — 1788. Bf ember of the Virginia Legislature — His devotion to a Union of the States — His endeavors to promote — Vindication of the Claims of the Army — ^His marriage — Removes to Richmond — Wishes to withdraw from public life — Prevented from doing so — Affairs of the United States —His Opinions as to increasing the Federal authority — Hailed the call -of the Federal Convention — Approves the Federal Constitution, ...42-47 CHAPTER VI. 1788. . Blembcr of the Virginia Convention — His personal popularity — Debates in the Convention — Conspicuous Members — Marshall as a Debater — Contrast between him and Patrick Henry — His Speeches — Patrick Henry's Eulogium — Adoption of the Constitution 48-68 CHAPTER VII. 1788 — 1797. Member of the Virginia Legislature — State of Parties in Virginia — Mar- shall's vindication of Washington's Administration — Retires from the Legislature — His practice in the Courts — Defends Domestic Policy of Washington's Administration — He is Denounced by the Opposition — Again elected a Member of the Legislature — Defends Jay's Treaty — Celebrity of his Speech — His visit to Philadelphia — Meets Ames, Cabot, and other Federalists — Offered the post of Attorney-General — Offered the Mission to France — Debates in the Virginia Legisla- ture 69-75 CHAPTER VIII. 1797 — 1798. iJnvoy tc France — Attentions paid to him on his Departure from Rick mond — Embarks at Philadelphia — The President's description or— \ > Arrival at Paris — Interview with M. Talleyrand — Difficulties inters ' CONTENTS. ix pose — TJnofBcial Negotiations — Propositions of Talleyrand's agents — Refusal of the Directory to see the Envoys — Demand of a loan and a douceur — Refusal of the Envoys — Incidents of their stay in Paris- Address a Letter to Talleyrand — His Reply — Answer of the Envoys They determine to return Home — Gerry is induced to stay — Pass- ports refused them — Marshall's interview with Talleyrand — Passports finally sent them — They leave Paris — Republication of their Dis- patches in England — Talleyrand's observations on — Marshall's arrival in New York — His Reception — JeflFerson's account of his Entry into Philadelphia — A public Dinner is given to him — Returns to Virginia — Resumes his Practice at the Bar 76-105 CHAPTER IX. 1799 — 1800. Member of Congress — Offered an Appointment on the Bench of the Supreme Court — Declines it — Visits General Washington — Anecdote — Is induced to become a Candidate for Congress — Is assailed by the Opposing Party — Calumnies against him — Patrick Henry's Letter respecting — Marshall's letter to Wash^ington — His Election — State of Parties in Congress — Wolcott's description of Marshall — Lawyers considered as Statesmen — Answer to the President's Speech — Death of Washington — Marshall's Eulogy upon — Approves of the 3d Mis- sion to Paris — Votes in favor of a Repeal of the Sedition Act — His Speech in the case of Jonathan Robbins — Resigns his seat 106-121 CHAPTER X. 1800 — 1801. Secretary of State — The Cabinet of President Adams — Members of de- scribed — Resignation of McHenry — Pickering dismissed — Marshall's appointment as Secretary of State — Importance of his services — His oflBcial Correspondence — His letter respecting Burr and Jeflerson, 122-129 CHAPTER XI. 1801 — 1836. Chief Justice of the United States — His personal appearance — Described by William Wirt, Judge Story, and Daniel Webster — His qualities as a Judge — The Bar of the Supreme Court — Dexter and Webster — Hoff- man, WellsT^Ogden, Emmett, and Oakley — Tilghmao, Rawle, Inger- soU, Duponceau, Hopkinson, Sergeant, and Binney — Luther Martin, Pinkney, and Harper — Wickham, Leigh, Nicholas, and Wirt — Mar- shall's opinions as to the Constitution — His principles of Construction — Aaron Burr — His schemes — His arrest — Case of Swartwout and Bollman — Trial of Burr — Judicial opinions — Marshall's character as a Judge — Character of his mind — The veneration and affection felt towards him by the Bar — Anecdote — Miss Martineau's description of a Scene in the Supreme Court 130-196 X C N T 7. N T S . CHAPTER XII 1800 — 1806. His Biography of Washington — Price asked for the Work — Price agreed to be paid for — The Republicans fear he will give a Party bias to hia work — Jefferson's letter to Barlow respecting — Candor of the work — Letters of Mason L. Weems — Delay in the Publication of the work — Clamors of the Subscribers — Does not wish his name to appear in the title page — Yields his Reluctance to the wishes of the Publisher — His Modesty — Letters to his Publisher — Wishes the Criticisms upon his work sent to him — Major Jackson's criticism — Marshall's morti- fication at the reception the first volume met with — Its character — His description of Pitt — His Letters — His candor — Reply to Jeffer- son's strictures — Criticism upon Life of Washington — Delineation of Washington 197-221 CHAPTER XIII. 1829. Virginia State Convention — Revision of the Constitution — Members of the Convention — the basis of Representation — Speech of the Chief Justice respecting — John Randolph's description of — Opinions of the Chief Justice respecting the Judiciary — Anecdote — Would give the Senate power to alter a Money Bill — Opposed to Disfranchising per- sons concerned in a Duel — Deference and respect with which h© was treated in the Convention — Assents to the Constitution as amended 222—237 CHAPTER XIV. 1829 — 1835. ronclusion — The residence of the Chief Justice — The Ambler family- Marriage of the daughters — His farms — Fond of Social pleasures — The Barbacue Club — Description of — The Chief Justice punctual in his attendance at — Anecdote of — His yearly visits to Fauquier — Anecdote — Bishop Meade's account of — His dress — An early riser — Goes to Market — Anecdote — Holds the Circuit Courts for North Carolina and Virginia — His style of travelling — His defence of Christianity — His genial disposition — Fond of the young — Anecdote — Generous and just — Instance of — Opinions with regard to Slavery — His politics — Views with regard to Secession and Nullification — Fond of Books — Reads Novels — Poetry — His health — Operation upon by Dr. Physick — His self-possession — Death of his wife — His atten- tion to — First meeting with his wife — Ardor of his character — Amount of his fortune at the time of his marriage — His Tribute to the Memory of his wife — Attends the Theatre to hear Miss Fanny Kemble — Is cheered — Effect of Miss Kemble's acting upon — Miss Martineau's description of the Chief Justice — Murray's description of — His unpretending manner — His conversation — Anecdote — His mind continues firm to the last — His health declines — ^Visits Phila- delphia to seek medical aid — His death — Calls forth tributes of affec- tion and respect — Town-meeting at Philadelphia — Reception of his Remains at Richmond — Funeral services — His statue — His religion —His virtues — Conclusion 238-272 THE LIPE OF JOHN MARSHALL CHAPTER I. HIS ANCESTRY. John Marshall, the grandfather of Chief Justice Marshall;, was a native of Wales, and emigrated to America about the year 1730. He settled in West- moreland County, which, not inaptly, has been termed * the Athens of Virginia' — Washington, Monroe, and the Lees having been born there. Here he married Elizabeth Markham, a native of England, who bore him four sons and five daughters. John Marshall was a planter, but does not appear to have been a very prosperous one. His estate, called ' Forest,' though consisting of several hundred acres, was comparatively unproductive. It was inherited by his eldest son, Thomas, who subsequently removed to Fauquier County. He settled at a place called Ger- mantown, and resided there for several years. Thomas Marshall and Washington were born in the same neighborhood, were companions in boyhood, and friends ever after. Both became practical surveyors, and in the pursuits of a common profession, and after- 1 Z LIFE OF JOHN MARSHALL. wards, in the service of a common country, their friend- ship and association were preserved. On the outbreak of the Revolution, Thomas Marshall was placed in command of the third Virginia regiment, serving as Continental troops, and in that capacity performed arduous and meritorious service. He was at Trenton and Brandywine, and in the latter battle bore a con- spicuous part. The natural abilities of Thomas Marshall were un- commonly vigorous, and were improved, not only by observation and reflection, but by extensive acquaint- ance with books. Though his means were limited, and his early advantages of education slight, he had purchased and made himself familiar with most of the standard works of English literature. By his neigh- bors and acquaintance he was held in the highest esti- mation for sound sense, and general ability. By his children he was equally beloved and admired. ^ I have myself,' says Judge Story, ' often heard the Chief Jus- tice speak of him in terms of the deepest aflection and reverence. I do not here refer to his public remarks ; but to his private and familiar conversations with me, when there was no other listener. Indeed, he never named his father, on these occasions, without dwell- ing on his character with a fond and winning enthu- siasm. It was a theme on which he broke out with a spontaneous eloquence; and, in the spirit of the most persuasive confidence, he would delight to expa- tiate upon his virtues and talents. " My father," (would he say, with kindled feelings and emphasis,) "my father was a far abler man than any of his sons. To him I owe the solid foundation of all my own success in life."" ' Discourse upon the Life, &c., of John Marshall. HIS ANCESTRY. 3 About the time of his removal from Westmoreland to Fauquier County, Thomas Marshall married Miss Mary Keith, respecting whom we have been able to obtain only one or two trifling particulars. If, how- ever, the character and talents of her children may be taken as the reflection of her own, she must have possessed great merit and understanding. CHAPTER II 1756 — 1775. HIS BIRTH AND EDUCATION. John Marshall, the eldest of fifteen children, was the son of Thomas and Mary Marshall, and born at a locality called Germantown, in Fauquier County, Vir- ginia, on the 24th day of September, 1755. When he was quite young, the family moved to Goose's Creek, under Manassa's Gap, near the Blue Ridge, and still later to Oak Hill, where they were living at the com- mencement of the Revolution.^ His father, a planter and surveyor like his friend Colonel Washington, led a very retired life, owing no doubt to the narrowness of his fortune, and the studiousness of his disposition. The region of country, too, in which he lived, was very sparsely settled ; there were no schools in the neigh- borhood, and the duty of instructing his children chiefly devolved on him. How cheerfully and faith- fully he performed it, the remark of the Chief Justice, which we have already quoted, that to his father he owed the solid foundation of all his success in life, is an ample testimony. To him he was indebted for that love of literature, which continued fresh and warm down to the very closing scenes of his life. ^ At the age of twelve [he] ' Howe's Virginia Historical Collections, page 262. HIS BIRTH AND EDUCATION. 5 had transcribed the whole of Pope's Essay on Man, and some of his moral essays, and had committed to memory many of the most interesting passages of that distinguished poet. The love of poetry, thus awakened in his warm and vigorous mind, soon exerted a com- manding influence over it. He became enamored of the classical writers of the old English school, of Mil- ton, and Shakspeare, and Dryden, and Pope; and was instructed by their solid sense, and beautiful imagery. In the enthusiasm of youth, he often indulged himself in poetical compositions, and freely gave up his leisure hours to those dreamings with the muses, which (say what we may) constitute with many the purest source of plea-sure in the gayer scenes of life, and the sweetest consolation in the hours of adversity.' ^ In study, in healthful sports, and amidst the genial and virtuous influence of his home, the early boyhood of John Marshall passed happily away. He was par- ticularly fortunate in being reared among numerous brothers and sisters. It has been often remarked that children growing up, under such circumstances, are the more apt, on that account, to make good men and women. They constitute a little community among themselves, and learn betimes that respect for social rights and duties, that mutual accommodation and for- bearance, which fit them for useful and pleasant asso- ciation in those corporate communities in which their lives are to be passed. At fourteen, he was sent to Westmoreland, a hun- dred miles away, where he commenced the study of Latin. His teacher was the Rev. Mr. Campbell, & very respectable clergyman, with whom he remained a year. One of his fellow-students, a lad of far infe- ' Discourse on the Life, &c., of John Marshall, by Joaoph Story. 6 LIFE OF JOHN MARSHALL. rior capacity, but who afterwards became President of the United States, was James Monroe. On his return home, which was about the time of his father's remo- val to Oak Hill, young Marshall continued the study of Latin another year, under the Rev. Mr. Thompson, a Scotch clergyman, who had just settled in the parish, and resided in his father's family. This was all the aid he ever received from teachers in his study of the classics. With Mr. Thompson he had begun the read- ing of Horace and Livy ; but how far his own unas- sisted efforts subsequently carried him, I am unable to say. As his stock of classical lore, however, was never very extensive, we may, perhaps, presume that, in the absence of classical tuition, he turned with more ardor to the study of English literature. Here he had the assistance and sympathy of his father, who was not only the kind and considerate parent, but the friend and companion of his son. 'My father,' thus he wrote long after, 'superintended the English part of my education, and to his care I am indebted for any thing valuable which I may have acquired in my youth. He was my only intelligent companion, and was both a watchful parent, and an affectionate, instructive friend. The young men within my reach were entirely uncultivated ; and the time passed with them was de- voted to hardy, athletic exercises.' But not to study alone, nor to the companionship of such a father, is the eminence of John Marshall to be solely attributed. In addition to the native vigor of his faculties, much was owing to the circumstances amid which he grew up. In a thinly populated region of country, he had, necessarily, but little society^ his mind was thrown upon itself, and his lonely medita- tions created and confirmed habits of thought and re- flection. The wild and mountainous scenery, too, that HIS BIRTH AND EDUCATION. 7 surrounded him, could not fail to affect a mind like his; reverent, and impressible to the varied charms of nature. The simple style of living, too, then common in that part of Virginia, the easy and friendly footing on which all social intercourse was conducted, were not lost on Marshall. Both were afterwards perceptible in his characteristic simplicity, and ready sympathy with humanity, in all its relations, without regard to rank or fortune, which, with his other qualities, so endeared him to his countrymen. *He ever recurred with fondness to that primitive mode of life, when he partook, with a keen relish, balm tea and mush, and when the females used thorns for pins.'' He was fond of athletic exercises, and, naturally enough in a region abounding in game, of field sports also. These tastes and habits gave him a firm, robust constitution, and, even in his years, he exhibited the vigor and fresh- ness of youth. Having selected the law as his future profession, he began the study of it about the time he was entering on the eighteenth year of his age. He had not, how- ever, made much progress in the perusal of Black- stone's Commentaries, before the threatening aspect of public afiiiirs withdrew and concentrated his ener- gies upon very difierent pursuits. In the next chapter, we shall view the future Chief Justice as a soldier. ' Howe's Virginia Historical Collections, page 263. CHAPTER III. 1775-1780 HIS MILITARY SERVICES. Times of Revolution are necessarily times of great intellectual activity. All minds are alert, anxious, and inquiring. Whether the cause of Revolution be politi- cal or religious, discussion and investigation are pre- supposed. Mankind are not apt to change existing establishments without very thorough conviction of the necessity of such change. And that conviction is not wrought in a day. Fixed habits, inherited attachments, interest in the past, and hopes in the future, all plead against innovation. When, there- fore, all the various considerations that urge men to Bubmit to the present order of things are overpowered by the weight of opposing considerations, it may readily be supposed that, in the conflict that has taken place, the minds of men have been thoroughly aroused, abstracted from ordinary pursuits, and fixed on objects of a larger and more comprehensive character. It was in the midst of the fermentation and excite- ment immediately preceding actual hostilities between Great Britain and her American colonies, that John Marshall received his first lessons in practical politics^- His father was a staunch Whig, who believed that the pretensions of Great Britain, if submitted to, would HIS MILITARY SERVICES. 9 result in the political enslavement of himself and pos- terity. The son could hardly fail to catch the tone and partake the sentiments of his father. But, what- ever his natural bias, yet not blindly, nor with unrea- soning facility, did he espouse the prevailing opinions. He investigated the grounds of the controversy. The various political essays of the day he read attentively. Full of youthful ardor, apd looking forward to the time when discussion would give way to arms, he en- rolled himself in a company of volunteers, in order to learn something of the rudiments of military science. In the spring of 1775 he was appointed Lieutenant in a militia company of the neighborhood, and, soon after, first Lieutenant in a company of minute-men. In this latter capacity, as we shall presently see, he was called into active service. On the 20th of April, Lord Dunmore, in consequence of the hostile attitude of the Virginians, had the powder in the magazine at Williamsburg removed on board a man-of-war. This proceeding produced a feeling of great exasperation throughout Virginia, and was in- creased by the threat of Dunmore that he would fire Williamsburg, and proclaim freedom to the slaves, if injury should befall himself, or the officers who had acted in the execution of his orders. It was in the midst of the prevailing excitement, when the whole body of the people were fully aroused, that news arrived of the action at Lexington. This startling intelligence increased the ferment. An appeal to arms and the God of Hosts seemed now to be inevitable. It is at this critical moment that we have our first view of John Marshall. It is now that we get our first dis- tinct impression of his youthful appearance. His com- pany had assembled, according to previous notice, about ten miles from his father's residence. A kins- 10 LIFE OF JOHN MARSHALL. man and cotemporary, who was present at their place of meeting, has thns described him as he then and there appeared : — *It was in May, 1775. He was then a youth of nineteen. The muster-field was some twenty miles distant from the Court-house, and in a section of coun- try peopled by tillers of the earth. Rumors of the occurrences near Boston had circulated with the effect of alarm and agitation, but without the means of ascer- taining the truth, for not a newspaper was printed nearer than Williamsburg, nor was one taken within the bounds of the militia company, though large. The Captain had called the company together, and was ex- pected to attend, but did not. John Marshall had been appointed Lieutenant to it. His father had formerly commanded it. Soon after Lieutenant Marshall's ap- pearance on the ground, those who knew him clustered about him to greet him, others from curiosity and to hear the news. ' He proceeded to inform the company that the Cap- tain would not be there, and that he had been ap- pointed Lieutenant instead of abetter; that he had come to meet them as fellow-soldiers, who were likely to be called on to defend their country, and their own rights and liberties, invaded by the British ; that there had been a battle at Lexington, in Massachu- setts, between the British and Americans, in which the Americans were victorious, but that more fight- ing was expected ; that soldiers were called for, and that it was time to brighten their fire-arms, and learn to use them in the field ; and that, if they would fall into a single line, he would show them the new manual exercise, for which purpose he had brought his gun, — bringing it up to his shoulder. The sergeants HIS MILITARY SERVICES. 11 put the men in line, and their fugleman presented himself in front to the right. ' His figure/ says his venerable kinsman, ' I have now before me. He was about six feet high, straight and rather slender, of dark complexion, showing little if any rosy red, yet good health, the outline of the face nearly a circle, and within that, eyes dark to black- ness, strong and penetrating, beaming with intelligence and good nature ; an upright forehead, rather low, was terminated in a horizontal line by a mass of raven- black hair of unusual thickness and strength ; the fea- tures of the face were in harmony with this outline, and the temples fully developed. The result of thi^ combination was interesting and very agreeable. The body and limbs indicated agility, rather than strength, in which, however, he was by no means deficient. He wore a purple or pale blue hunting shirt, and trowsers of the same material, fringed with white. A round black hat, mounted with tho buck's-tail for ;. cockade, crowned the figure and the man. He went through the manual exercise by word and motion, deliberately pronounced and performed, in the presence of the com- pany, before he required the men to imitate him ; and then proceeded to exercise them, with the most per- feet temper. Never did man possess a temper more happy, or, if otherwise, more subdued or better disci- plined. ' After a few lessons, the company were dismissed, and informed that, if they wished to hear more about the war, and would form a circle around him, he would tell them what he understood about it. The circle was formed, and he addressed the company for something like an hour. I remember, for I was near him, that he spoke, at the close of his speech, of the minute battalion, about to be raised, and said he was 12 LIFE OF JOHN MARSHALL. going into it, and expected to be joined by many of his hearers. He then challenged an acquaintance to a game of quoits, and they closed the day with foot- races and otlier athletic exercises, at which there was no betting. He had walked ten miles to the muster- field, and returned the same distance on foot to his father's house at Oak Hill, where he arrived a little afte** sunset.'* Thus and so was John Marshall, in the freshness of youth, and thus, in the main, did he continue through life. The same simplicity, naturalness, good nature, happy temperament, open, manly, and sincere disposi- tion, were at all times remarked, and secured to him the unaffected love of his countrymen. They could admire the exhibition of his pre-eminent talents, but qualities like these were needed to attract and fix the affection of their hearts. The occurrences to the northward, and the hostile attitude of parties at home, the liability and expecta- tion of being called into immediate service, induced the volunteers of Culpepper, Orange, and Fauquier Counties, to constitute themselves a regiment of minute men. This was, doubtless, the organization to which young Marshall referred, in his address to the militia, as about to be formed. They were, the first minute men raised in Virginia, and numbered about three hundred and fifty men. Lawrence Taliaferro was chosen their Colonel, Edward Stevens, Lieute- nant-Colonel, and Thomas Marshall, the father of the Chief Justice, Major. The future Chief Justice him- self received the appointment of first Lieutenant in one of the companies of this regiment. ' Eulogy on John Marshall by Horace Binn«y, pp. 22-24. HIS MILITARY SERYICES. 13 These were the citizen soldiery, who, John Ran- dolph said in the Senate of the United States, in one of his discursive speeches, 'were raised in a minute, armed in a minute, marched in a minute, fought in a minute, and vanquished in a minute.' Their appear- ance was calculated to strike terror into the hearts of an enemy. They were dressed in green hunting-shirts, * home-spun, home-woven, and home-made,' with the words, ' Liberty or Death' in large white letters, on their bosoms. * They wore in their hats buck-tails, and in their belts, tomahawks and scalping-knives. Their savage, warlike appearance, excited the terror of the inhabitants as the}^ marched through the coun- try to Williamsburg." Lord Dunmore told his troops before the action at the Great Bridge, which we shall presently describe, that if they fell into the hands of the shirt-men, they would be scalped ; an apprehen- sion, it is said, which induced several of them to pre- fer death to captivity. To the honor of the shirt-men, however, it should be observed, that they treated the British prisoners with great kindness — a kindness which was felt and gratefully acknowledged. Early in June, Lord Dunmore, apprehensive of his personal safety, fled on board a man-of-war. With the British shipping, off the coast of Virginia, at his command, he possessed the means of annoying the Vir- ginians, without being able to strike any very effective blow. Through the summer and autumn of 1775, both parties were kept upon the alert, but nothing of a very serious character occurred. At length, on the 7th of November, Dunmore proclaimed martial law, denounced as traitors all who were capable of bearing arms and did not resort to His Majesty's standard, ' Howe's Virginia Historical Collections, p. 238. 14 LIFE OF JOHN MARSHALL and offered freedom to all slaves ^ appertaining to rebels' who would join His Majesty's troops. He set up his standard in Norfolk and Princess Anne, pre- scribed an oath of allegiance, and, from among the Loyalists, received a considerable accession to his force. At Suffolk, eighteen miles south-west of Norfolk, the Virginians had collected provisions for their troops. To capture these provisions was an object of import- ance to Lord Dunmore. To prevent it, was an object of equal importance to the Virginians. The Provi- sional Government had kept a steady eye on his lord- ship's movements, and clearly perceived the danger of permitting him to retain a foothold at Norfolk. They despatched Colonel Woodford, with a detachment of minute men, including Marshall's company, to protect the provisions at Suffolk, and relieve Norfolk from the presence of the enemy. The engagement which we are now to relate, was the result. About twelve miles from Norfolk, on the only prac- ticable road to Suffolk, was the Great Bridge, as it was termed, and built over the southern branch of Eliza- beth River. Here Dunmore, apprised of Woodford's movements, erected a stockade fort, and supplied it with a numerous artillery. The position was a strong one, surrounded on all sides by water and marshes, and only accessible by a long dike. This was com- manded by his cannon, as well as the bridge and the causeway on the other side, over which the Americans must pass. The Governor's troops, however, were not equal to his intrenchments. They consisted of two hundred regulars, a corps of Norfolk Loyalists, and 'a shapeless mass of varlets of every color.' ' Botta. HIS MILITARY SERVICES. 15 When Woodford arrived at the bridge, he threw up a breastwork at the extremity of the causeway on his side. Neither party seemed disposed to begin the attack. Several days passed, without any serious movement on either side. In numbers and character, the Virginians were much superior to the enemy. True, for the most part, they were unused to warfare, but being chiefly young men, they were full of enthu- siasm, and ready for action. It was here and now, that Lieutenant Marshall had his first experience of war. In the action which ensued, he is said to have borne an honorable part. The enemy were induced to begin the attack by stratagem. A servant of Major Marshall's, after being instructed in the part he was to play, deserted to the enemy, and reported that there were not at the bridge more than three hundred sliirUmen, This tale Lord Dunmore believed, and accordingly despatched his regular troops, together with about three hundred blacks and Loyalists, to drive the Virginians from their position. The attack was made on the 9th of December. Captain Fordyce, a brave and accom- plished officer, led the attacking party. As they ad- vanced along the causeway to storm the breastwork, they were exposed to the deadly fire of the American riflemen. The effect was overwhelming. The action did not last more than twenty or thirty minutes ; but the enemy were totally routed. Lord Dunmore aban- doned his intrenchments, spiked his cannon, and again fled to his ships. On the fourteenth, the Americans entered Norfolk. Here Marshall remained with his corps, until the town was bombarded and burned by the British shipping, on the 1st of January following. In July, 1776, he was appointed first Lieutenant in 16 LIFE OF JOHN MARSHALL. the eleventh Virginia regiment, and, in the following winter, joined the army in camp at Morristown. That army, notwithstanding the successes at Trenton and Princeton, was in the most wretched condition, both as to numbers and materiel. Washington's letter to the Governor and Council of Connecticut, describing the actual state of affairs, is said to have drawn tears from those who heard it read/ 'Nothing but a good face and false appearances,' he subsequently wrote, * have enabled us hitherto to deceive the enemy re- specting our strength.'^ It was the fortune of young Marshall to follow the standard of his country in the gloomiest period of the war; a period, when patient endurance of suffering was the highest quality the soldier could display. In May, when the campaign of 1777 was about opening, he received the appointment of Captain. In this sub- ordinate post he was not in a position to attract the eye of the historian, and, consequently, we are with- out any detailed account of his actual conduct in the field. Suffice it to say, therefore, that he was engaged in the action at Iron Hill, which preluded the Battle of Brandywine, when the corps to which he was attached did memorable service. Indeed, the Virginia troops behaved, in this battle, with the greatest gal- lantry, and merited universal praise. But the victory, or the results of victory, remained with the British. In the course of a few days. General Howe made his triumphal entry into Philadelphia.^ Then followed the Battle of Germantown,^ a battle which would have resulted in favor of the Americans, had not victory been snatched from their grasp, in ' Gordon, vol. ii., p. 170. * Ibid., p. 198. » September 26th, 1777. * October 3d, 1777. HIS MILITARY SERVICES. 17 the rDtinner thus described by one of the American Generals. 'At Germantown,' he says, ' fortune smiled on our arms for hours. The enemy were broke, dis- persed, and flying on all quarters ; we were in posses- sion of their whole encampment, together with their artillery park, &c. A wind-miU attack was made on a house into which six light companies had thrown themselves to avoid our bayonets ; this gave time to the enemy to rally ; our troops were deceived by this attack ; taking it for something formidable, they fell back to assist in what they deemed a serious matter. The enemy finding themselves no further pursued, and believing it to be a retreat, followed. Confusion en- sued, and we ran away from the arms of victory ready to receive us.' ^ Marshall was with the column that halted to attack Chew's House — an attack to which the ill success of the day is undoubtedly attributable. No further serious engagement took place between the two armies during this campaign; and on the 19th of December, Wash- ington, with his exhausted troops, went into winter quarters at Valley Forge. The cold was extreme ; yet his men were without clothes to cover their nakedness, without blankets to lie on, and without shoes, so that their marches could be traced by the blood from their feet. They were as often without provisions as with. But these men, taking up their winter quarters within a day's march of the enemy, without a house or hut to cover them, till they could be built, pinched by hun- ger, and stiffened by cold, submitted to hardships and privations like these without a murmur. Well might Washington declare without arrogance, or the smallest deviation from truth, ' that no history, now extant, ' Gordon, vol. ii., p. 235. 18 LIFE OF JOHN MARSHALL. can furnish an instance of an army's suffering such uncommon hardships as ours has done, and bearing them with the same patience and fortitude.'^ Marshall's mess-mates, during this memorable win- ter, were Lieutenant Robert Porte rfield, Captain Charles Porterfield, Captain Johnson, and Lieutenant Philip Slaughter. The latter has described the suffer- ings they endured from want of food and clothing. ' Most of the officers gave to their almost naked sol- diers nearly the whole of their clothing, reserving only that they themselves had on. Slaughter was reduced to a single shirt. While this was being washed, he wrapped himself in a blanket. From the breast of his only shirt he had wrist-bands and a collar made, to complete his uniform for parade. Many of his brother officers were still worse off, having no under garment at all ; and not one soldier in five had a blanket. They all lived in rude huts, and the snow was knee-deep the whole winter. Washington daily invited the offi- cers, in rotation, to dine with him at his private table; but, for want of decent clothing, few were enabled to attend. Slaughter being so much better provided, fre- quently went in place of others, that, as he said, "his regiment might be represented." While in this starv- ing condition, the country people brought food to the camp. Often the Dutch women were seen riding in, sitting on bags on their horses' backs, holding two or three bushels each of apple pies, baked sufficiently hard to be thrown across the room without breaking. These were purchased eagerly, eaten with avidity, and considered a great luxury.' Slaughter says, 'Marshall was the best-tempered man he ever knew. During their sufferings at Valley ' Washington's Writings, vol. v., pp. 321, 329. HIS MILITARY SERVICES. 19 Forge, nothing discouraged, nothing disturbed him; if he had only bread to eat, it was just as well; if onljf meat, it made no difference. If any of the ofi&cers muruiured at their deprivations, he would shame them by good-natured raillery, or encourage them by his own exuberance of spirits. He was an excellent com- panion ; and idolized by the soldiers, and his brother officers, whose gloomy hours were enlivened by his in- exhaustible fund of anecdote.' ^ A further testimony, as to the estimation in which he was held by his brother officers, is found in the fol- lowing extract. ' When the writer of this article first saw him,' says a cotemporary, ' he held the commis- sion of Captain in that regiment.'^ It was in the try- ing, severe winter of 1777-8, a few months after the disastrous battles of Brandywine and Germantown had tested his firmness, hardihood, and heroism. The spot where we acquired our earliest information of him, was the famous hutted encampment at Valley Forge, about thirty miles from Philadelphia. By his appearance then, we supposed him about twenty-two or twenty-three years of age. Even so early in life, we recollect that he appeared to us primus inter pares, for, amidst the many commissioned officers, he was dis- criminated for superior intelligence. Our informant, Colonel Ball, of another regiment in the same line, represented him as a young man, not only brave, but signally intelligent. Indeed, all those who intimately knew him, affirmed that his capacity was held in such estimation by many of his brother officers, that, in many disputes of a certain description, he was con- stantly chosen arbiter; and that officers, irritated bv Howe's Virginia Historical Collectious, pp. 239, 28G. See note A 'Eleventh Virginia Regiment. 20 LIFE OF JOHN MARSHALL. dijQferences, or animated by debate, often submitted the contested points to his judgment, which, being in writing, and accompanied, as it commonly was, by sound reasons in support of his decision, obtained general acquiescence.' * He was often employed, during this period of his military life, as Deputy Judge Advocate. The per- formance of the duties of this post extended his ac- quaintance among the officers of the army. It was now that he became acquainted with Colonel Hamil- ton, who was acting as aid-de-camp of the Comman- der-in-chief. 'Of Hamilton,' says Judge Story, 'he always spoke in the most unreserved manner, as a sol- dier and statesman of consummate ability; and, in point of comprehensiveness of mind, purity of patriot- ism, and soundness of principles, as among the first that had ever graced the councils of any nation. His services to the American Republic he deemed to have been of inestimable value, and such as had eminently conduced to its stability, its prosperity, and its true glory.' ^ But, notwithstanding the deep respect he always entertained for Hamilton, 'whose unreserved friendship, at a subsequent period of his life, he fami- liarly enjoyed,' we shall hereafter see that, when the man by whose hand he had fallen, was brought before him on a charge of treason, he held the scales of jus- tice with so nice a poise, he held up before the pri- soner the shield of the law with so firm a hand, that if it did not excite the surprise, at least, provoked the indignation of the Chief Executive Magistrate, w^ho pressed the conviction of Burr with a zeal that seem- ingly had its root in vindictiveness. ' North American Review for January, 1828, p. 8. * Story'B Discourse on the Life, &c., of John Marshall, p. 16 HIS MILITARY SERVICES. 21 The possession of Philadelphia promised so little ad»vant;ige to the Royal forces, and, indeed, exposed them to such danger, that the British Ministry sent out orders, in the spring of 1778, for its speedy evacu- ation. These orders reached Sir Henry Clinton, who had superseded Sir William Howe, early in June. He immediately addressed himself to the task of executing them. In the night of the 18th, the city was evacu- ated. The American army was immediately put in motion, with the view to harass and impede the pro- gress of the enemy. Marshall was in the Battle of Monmouth, which succeeded. He remained with the army through the campaign, as well as during the following winter. In the campaign of 1779, it was his fortune to be con- nected with or engaged in two of the most brilliant actions that distinguished it. He was with Wayne at the assault of Stony Point, on the night of the 16th of June, and with the detachment to cover the retreat of Major Lee, after his surprise of the enemy's post at Powle's Hook, on the 19th of July ; an enterprise which threw a lustre upon the American arms. He continued with the army until the close of the year, when a part of the Virginia line was sent to South Carolina, to co-operate in the defence of that State. It so happened, that he was attached to the other part, whose term of enlistment now expired. Being thus without command, he, with other supernumeraries, was directed to return home, in order to take charge of such men as the State might raise for them. No further opportunity for active military service occurred, until the arrival in Virginia of the British army under General Leslie, in October, 1780. Cap- tain Marshall now joined the small force under Baron Steuben, who had been left by General Greene, (while 22 LIFE OF JOHN MARSHALL. on his way to assume the command of the Southern army,) to direct the defence of the State. General Les- lie, however, finding that Lord Cornwallis could not effect a junction with him, an object which was essen- tial to the success of the plan for the reduction of Vir- ginia, finally sailed for Charleston. Late in December, the State was again invaded by Arnold. Marshall joined the forces collected to oppose him, and continued in service until Arnold retired to Portsmouth, in the latter part of the following January. As there was still a redundancy of officers in the Vir- ginia line, he now resigned his commission ; and for the future we shall view him in a different walk of life. Note A. See page 19. In a letter to the author, the late Josiah Quincy thus writes of Marshall : " With Marshall I had considerable acquaintance during the eight years I was a member of Congress, from 1805 to 1813, played chesa with him, and never failed to be impressed with the frank, cordial, child-like symplicity, and unpretending manner of the man, of whose strength and breadth of intellectual power I was, even a.t that early period of his professional life, well apprised. In one of the above-mentioned years, I dined at Georgetown with John Randolph and a large company of Virginians and other Southern gentlemen. The conversation turned to Judge Marshall, of whom the Virginians were very proud, altho' some, if not all of them, did not coincide with his well-known political faith. All, however, were loud in his praises, and anecdotes were told of his early life, and particularly of his athletic powers ; among others I remember it was said that he surpassed in them any man in the army ; that when the soldiers were idle at their quarters, it was usual for the oflticers to engage in matches at quoits, or in jumping and racing. That in these exercises Marshall excelled all his competitors ; that he would throw a quoit further, and beat at a race, any other ; that he was the only man who, with a running jump, could clear a stick laid over the heads of two men as tall as himself. On one occasion he ran in his stocking feet, with a comrade, and his mother in knitting his stockings had the legs of blue yarn and the heels of white. This circumstance, combined with his uniform success in the race, led the soldiers, who always were present at these races, to give him the sobriquet of ' Silverheels,' the name by which he was generally known among them." CHAPTER rV. HIS PRACTICE AT THE BAR. 1781 — 1799. During the season of inaction following his return to Virginia, in the winter of 1779-80, Marshall re- sumed the study of the law. He attended, at William and Mary's College, a course of law lectures by Mr. Wythe, better known afterwards as Chancellor Wythe, and lectures upon natural philosophy by Mr. Madison, then President of the College, and subsequently Bishop of Virginia. He was connected with the institution until the summer vacation of 1780, and soon after was admitted to the Bar. But, in the tumult of war, the courts of law were suspended in Virginia, and not re- opened until after the capture of Cornwallis, in Octo- ber, 1781. From the termination of Arnold's invasion, when he resigned his commission, until he began his practice upon the re-opening of the Courts, Marshall devoted himself, with unremitting attention, to the study of his future profession. It was at this period of his life, either in the sum- mer of 1780 or 1781, that he undertook a journey to Philadelphia on foot, in order to be inoculated for the small-pox. He walked at the rate of thirty-five miles a day. On his arrival, such was his shabby appear- ance, that he was refused admission into one of the hotels; his long beard, and worn-out garments, proba- 23 24 LIFE OF JOHN MARSHALL. bly suggesting the idea that his purse was not adequate to his entertainment/ But to the man who had under- gone the hardships of Morristown and Valley Forge, who had been reduced almost to nakedness, any garb that served the purpose of a covering, must have seemed sufficient for any occasion. In truth, he was at all times careless of his dress, particularly in early life ; and once, as we shall presently relate, lost a generous fee in consequence. He began his professional career in Fauquier, his native county ; but, in the course of two years, re- moved to Richmond, where he continued to reside until his death. His stock of legal knowledge, as we may infer from the short time he had devoted to its acquisition, was not very extensive ; but it was said of the Virginians, more than a hundred and fifty years ago, that, being naturally of good parts, they neither require nor admire as much learning as they do in Britain.^ At any rate, such was the felicity of Mar- shall's understanding, that on a slender foundation of legal science he soon raised himself to the highest reputation in his profession. He attributed his early success at the Bar to the friendship of his old com- ' Southern Literary Messenger, vol. ii., p. 183. ' 'The Present State of Virginia; by Hugh Jones, A.M., Chap- lain to the Honorable Assembly, and lately Minister of Jamestown, in Virginia.' The Reverend author seems to have been charmed with his residence among the Virginians, and thus asserts their supe- riority over all the other colonists: — 'If New England,' he says, 'be called a receptacle of Dissenters, and an Amsterdam of religion, Penn- sylvania a nursery of Quakers, Maryland the retirement of Roman Catholics, North Carolina the refuge of runaways, and South Carolina the delight of Buccaneers and Pyrates, Virginia may be justly es- teemed the happy retreat of true Britons, and true churchmen for the most part ; neither soaring too high, nor dropping too low, conse- quently should merit the greater esteem and encouragement.' HIS PRACTICE AT THE BAR. 25 panions in arms. ' They knew,' he would say, * thai I felt their wrongs, and sympathized in their suffer- ings, and had partaken of their labors, and that I vin- dicated their claims upon their country with a warm and constant earnestness.'^ We have seen how strong was their attachment to him. * I myself,' says Judge Story, ' have often heard him spoken of by some of these veterans in terms of the warmest praise. In an especial manner the Revolutionary officers of the Vir- ginia line (now "few and faint, but fearless still") appeared almost to idolize him, as an old friend and companion in arms, enjoying their unqualified confi- dence.' ^ They knew his abilities, his integrity, and loved him for the goodness of his heart. Strangers, on the con- trary, judging from external appearances, might not so readily have given him credit for qualities that would insure success at the Bar. For, though easy, frank, friendly, and cordial in his manners, and social in his habits, he was yet negligent in his dress, not very studious, and with nothing in his exterior to attract clients. The following anecdote is character- istic of his rustic appearance, at a time when his com- prehension and grasp of mind had already attracted the attention of the Bench and Bar, and he was ad- vancing with sure steps to the head of his profession. He ' was one morning strolling through the streets of Richmond, attired in a plain linen roundabout and shorts, with his hat under his arm, from which he was eating cherries, when he stopped in the porch of the Eagle hotel, indulged in some little pleasantry with the landlord, and then passed on. Mr. P., an elderly ' New York Review, vol. iii., p. 333. ■ Discourse upon the Life, &c., of John Marshall, p. 16. 26 LIFE OF JOHN MARSHALL. gentleman from the country, then present, who had a case coming on before the Court of Appeals, was re- ferred by the landlord to Marshall, as the best advo- cate for him to employ ; but the careless, languid air of the young lawyer had so prejudiced Mr. P., that he refused to engage him. On entering Court, Mr. P. was a second time referred by the Clerk of the Court, and a second time he declined. At this moment entered Mr. v., a venerable-looking legal gentleman, in a pow- dered wig and black coat, whose dignified appearance produced such an impression on Mr. P. that he at once engaged him. In the first case which came on, Mar- shall and Mr. V. each addressed the Court. The vast inferiority of his advocate was so apparent, that, at the close of the case, Mr. P. introduced himself to young Marshall, frankly stated the prejudice which had caused him, in opposition to advice, to employ Mr. V. ; that he extremely regretted his error, but knew not how to remedy it. He had come into the city with one hundred dollars, as his lawyer's fee, which he had paid, and had but five left, which, if Marshall chose, he would cheerfully give him, for assisting in the case. Marshall, pleased with the incident, accepted the offer, not, however, without passing a sly joke at the omiii- pofence of a powdered wig and black coat.' ' Marshall's rise at the Bar was rapid. Once placed in the line of employment, his extraordinary talents could hardly fail to make the same impression on who- ever witnessed their display, as on Mr. P.. For, with- out possessing scarcely a single attribute that we natu- rally ascribe to the orator, without beauty of style, melody of voice, grace of person, or charm of manner, he, nevertheless, was as distinguished as an advocate, ' Howe's Virginia Historical Collections, p. 266. HIS PRACTICE AT THE BAR. 27 as he afterwards became as a judge. The qualities that gave him such pre-eminence at the Bar are thus delineated by the graceful pen of Mr. Wirt : — *This extraordinary man,' says Mr, Wirt, '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; 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. His voice is dry and hard ; his attitude, in his most effective orations, was often extremely awkward ; while all his gesture pro- ceeded from his right arm, and consisted merely in a perpendicular swing of it, from about the elevation of his head to the bar, behind which he was accustomed to stand. As to fancy, if she hold a seat in his mind at all, his gigantic genius tramples with disdain on all her flower-decked plats and blooming parterres. How then, you will ask, how is it possible, that such a man can hold the attention of an audience enchained through a speech of even ordinary length ? I will tell you. He possesses one original, and almost super- natural 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 hea- ven is not more rapid, or more resistless, than his astonishing penetration. Nor does the exercise of it seem to cost him an efibrt. 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 28 LIFE OF JOHN MARSHALL. with more promptitude and facility, than his mind embraces and analyzes the most complex subject. ' Possessing, while at the Bar, this intellectual eleva- tion, 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 BO remotely from the point directly in debate, or else in terms so general and so specious, 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, how- ever distant, followed as certainly, as cogently, as in- evitably, as any demonstration in Euclid. All his eloquence consists in the apparently deep self-convic- tion, and emphatic earnestness of his manner; the cor- respondent simplicit}^ and energy of his style ; the close and logical connection of his thoughts ; and the easy gradations by which he opens his lights oa 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 fes- toons 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 with easy but unremitting pace ; the subject opens gradually on the view ; until, rising, in high re- lief, in all its native colors and proportions, the argu- ment is consummated, by the conviction of the de- lighted hearer." ' The British Spy, pp. 178-181 HIS PRACTICE AT THE BAR. 29 If Marshall, as he first appeared at the Bar, did not bear a finished resemblance to the picture thus sketched by Mr. Wirt nearly a quarter of a century after, he certainly possessed the more striking outlines of it. Strength, cogency of reasoning, was the characteristic excellence of all his intellectual displays. His maxim .seems always to have been, ' aim exclusively at strength.' Of eloquence, in the usual sense, he evi- dently was not emulous, and, perhaps, not capable. His object was to convince, and he sought to do this in the most direct and simple manner. It was always remarkable of him, says Wirt, ' that he almost inva- riably seized one strong point only, the pivot of the controversy ; this point he would enforce with all his powers, never permitting his own mind to waver, nor obscuring those of his hearers by a cloud of inferior, unimportant considerations.'^ This 'convincing elo- quence,' which he so pre-eminently possessed, ' is infi- nitely more serviceable to its possessor than the most florid harangue, or the most pathetic tones that can be imagined ; and the man who is thoroughly convinced himself, who understands his subject, and the language he speaks in, will be more apt to silence opposition, than he who studies the force of his periods, and fills our ears with sounds, while our minds are destitute of conviction.' ^ The period succeeding the Revolutionary War wit- nessed a great accession of business in the Courts. Outstanding debts, unfulfilled contracts, together with the mutations property had undergone amid the con- flicts of a long war, were fruitful sources of litigation. *Does not every gentleman here know' demanded Marshall in the Virginia Convention of 1788, when » The British Spy, p. 211. » The Bee, No. VI. 30 LIFE OF JOHN MARSHALL. raaintftining the necessity of a Federal Judiciary, 'that the causes in our Courts are more numerous than they can decide, according to their present construction ? Look at the dockets. You will find them crowded with suits, which the life of man will not see deter mined. If some of these suits be carried to other Courts, will it be wrong? They will still have busi- ness enough.' It was a period not only of profitable employment to the Bar, but a period calculated to stimulate the highest energies of their minds. The fair fabric of x\merican jurisprudence was yet unreared. The law was in an unsettled state. Questions of novel charac- ter occupied the attention of the Courts; questions to be settled, not by the weight of authority, but by the light of reason. It was in the investigation and argument of causes like these, where the advocate was neither aided nor impeded by precedents; where he was compelled to rely on the unassisted powers of his own mind; to support his own thoughts, ra,ther than quote the thoughts of others, that the great abili- ties of Marshall found an adequate theatre for their employment and display. When the Federal Judiciary was established, the sphere of his practice was enlarged. Several of the causes in which he was engaged possessed great public interest, and attracted universal attention. The fame of his arguments spread through the Union. Ware vevfius Hylton, familiarly known as the British debt case, was one of the causes in which he particularly distinguished himself. It came on for trial at the Cir- cuit Court of the United States at Richmond, in 1793; Chief Justice Jay, Judge Iredell, and Griffin, the Judge of the District Court, holding the term. Patrick Henry, Marshall, Alexander Campbell, and James HIS PRACTICE AT THE BAR. 31 Innis, appeared for the American debtors; and An- drew Ronald, John Wickham, 'the eloquent, the witty, and the graceful," and Starke, and Baker, for the English creditors. The question was, whether the treaty of peace, which provided that creditors on either side should meet with no laicfid impediment to the recovery of the full value of all bona fide debts theretofore contracted, revived debts which had been sequestered during the war by an act of the Virginia Legislature. The eminence of the counsel, as well as the exten- sive interests to be affected by the decision of the Court, brought together an eager and expectant aud- ience. The Countess of Huntington, then in this coun- try, was present during the trial, and remarked, after hearing the several speakers, 'that if every one of them had spoken in Westminster Hall, they would have been honored with a peerage.'^ 'The cause,' said Judge Iredell, ' has been spoken to, at the Bar, with a degree of ability equal to any occasion. Howevei painfully I may at any time reflect on the inadequacy of my own talents, I shall, as long as I live, remember with pleasure and respect the arguments which I have heard in this case. They have discovered an inge- nuity, a depth of investigation, and a power of reason- ing fully equal to any thing I have ever witnessed, and some of them have been adorned with a splendor of eloquence surpassing what I have ever felt before. Fatigue has given way under its influence, and the heart has been warmed, while the understanding has beeit instructed.' ^ Patrick Henry shone, on this occasion, with unsur- ' Howe's Virginia Historical Collections, p. 221, ' Dallas' Reports, vol. iii., p. 257. 32 LIFE OF JOHN MARSHALL. passed splendor. His vivid feelings, that irresistible charm of his eloquence, were fully aroused, and en- listed in the cause. He made unwonted preparation for the trial; shutting himself up in his office for three days, during which time he did not see even his family ; his food being handed by a servant through the office-door.^ His argument occupied the attention of the Court during three days. He had a diamond ring on his finger, and, while he was speaking, the Countess of Huntington exclaimed to Judge Iredell, who had never before heard him, 'The diamond is hlazing!' 'Gracious Godl'rephed he, ' he is an ora- tor indeed.' In this cause he injured his voice so that it never recovered its original power.' We have no abstract of Marshall's argument on this occasion, and shall not attempt to supply its place by resorting to conjecture. Its character, however, may be surmised by his subsequent argument before the Supreme Court of the United States, whither the cause was carried by writ of error. His colleague in the trial before the latter tribunal was Alexander Camp- bell. It was, doubtlesh, to the arguments on this occa- sion to which Wirt refers in the following extract of a letter to his friend Gilmer. He speaks of them, how- ever, as having been made in the cause which turned on the constitutionality of the carriage tax, a cause, indeed, which was heard at the same term of the Court ; but Marshall was not one of the counsel. ' Pi'om what I have heard of Campbell,' says Wirt, * I believe that, for mere eloquence, his equal has never been seen in the United States. He and the ' Virginia Historical Collectioos, supra, ' Ibid. See also Wirt's Patrick Henry, for abstract of his argument HIS PRACTICE AT THE BAR. 33 Chief Justice went to Philadelphia to argue a cause which turned on the constitutionality of the carriage tax. It was somewhere about 1795 or 1796. They were opposed by Hamilton, Lewis, and others. Camp- bell played off his Appollonian airs ; but they were lost. Marshall spoke, as he always does, to the judg- ment 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 admi- ration 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 a^^ain, I would practice on his maxim with the most 1 'gorous severity, until the character of my mind was stablished.' * Marshall's argument, as preserved in the report of the case, will now claim our attention : — *The case resolves itself,' said he, 'into two general propositions. First, That the Act of Assembly of Vir- ginia is a bar to the recovery of the debt, independent of the treaty. Secondly, That the treaty does not re- move the bar. ' That the Act of Assembly of Virginia is a bar to the recovery of the debt, introduces two subjects for consideration : — * First, Whether the Legislature had power to ex- tinguish the debt? Secondly, Whether the Legislature had exercised that power ? ' Kennedy's Wirt, vol. ii., p. 83. 34 LIFE OF JOHN MARSHALL. ^ First. It has been conceded, that independent na- tions have, in general, the right of confiscation ; and that Virginia, at the time of passing her law, was an independent nation. But, it is contended, that, from the peculiar circumstances of the war, the citizens of each of the contending nations having been members of the same government, the general right of confisca- tion did not apply, and ought not to be exercised. It is not, however, necessary for the defendant in error to show a parallel case in history ; since it is incum- bent on those who wish to impair the sovereignty of Virginia, to establish, on principle, or precedent, the justice of their exception. That State being engaged in a war, necessarily possessed 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. War, indeed, is a state of force ; and no tribunal can decide between the bellige- rent powers. But did not Virginia hazard as much by the war, as if she had never been a member of the British empire ? Did she not hazard more, from the very circumstance of its being a civil war? It will be allowed, that nations have equal powers; and that America, in her own tribunals at least, must, from the 4th of July, 1776, be considered as independent a na- tion as Great Britain. Then, what would have been the situation of American property, had Great Britain been triumphant in the conflict ? Sequestration, con- fiscation, and proscription would have followed in the train of that event ; and why should the confiscation of British property be deemed less just in the event of the American triumph ? The rights of war clearly exist between members of the same empire, engaged in a civil war. * But, suppose a suit had been brought, during the HIS PRACTICE AT THE BAR. 35 war, by a British subject against an American citizen, it could not have been supported ; and, if there was a power to suspend the recovery, there must have been a power to extinguish the debt. They are, indeed, portions of the same power, emanating from the same source. The legislative authority of any country can only be restrained b}'^ its own municipal constitution. This is a principle that springs from the very nature of society; and the judicial authority can have no right to question the validity of a law, unless such a jurisdiction is expressly given by the Constitution. It is not necessary to inquire how the judicial authority should act, if the Legislature were evidently to violate any of the laws of God ; but property is the creature of civil society, and subject, in all respects, to the dis- position and control of civil institutions * But it is now to be considered, whether, if the Legislature of Virginia had the power of confiscation, they have exercised it? The third section of the Act of Assembly discharges the debtor; and, on the plain import of the term, it may be asked, if he is dis- charged, how can he remain charged ? The expression is, he shall be discharged from the debt ; and yet, it is eon tended he shall remain liable to the debt. Suppose the law had said, that the debtor should be discharged from the Commonwealth, but not from his creditor, would not the Legislature have betrayed the extremest folly in such a proposition? and what man in his senses would have paid a farthing into the treasury under such a law ? Yet, in violation of the expressions of the Act, this is the construction which is now attempted. ' It is, likewise, contended, that the Act of Assembly does not amount to a donfiscation of the debts paid into the treasury; and that the Legislature had no 36 LIFE OF JOHN MARSHALL. power, as between creditors and debtors, to make a substitution, or commutation, in the mode of payment. But, what is a confiscation? The substance, and not the form, is to be regarded. The State had a right either to make the confiscation absolute, or to modify it as she pleased. If she had ordered the debtor to pay the money into the treasury, to be applied to pub- lic uses, would it not have been, in the eye of reason, a perfect confiscation ? She has thought proper, hoW' ever, only to authorize the payment, to exonerate the debtor from his creditor, and to retain the money in the treasurj^ subject to her own discretion, as to its future appropriation. As far as the arrangement has been made, it is confiscatory in its nature, and must be binding on the parties; though, in the exercise of her discretion, the State migbt choose to restore the whole, or any part, of the money to the original credi- tor. Nor is it sufficient to say, that the payment was voluntary, in order to defeat the confiscation. A law is an expression of the public w^ill ; which, when ex- pressed, is not the less obligatory, because it imposes no penalty. . . . * Having thus, then, establised that, at the time of entering into the treaty of 1783, the defendant owed nothing to the plaintiff, it is next to be inquired, whe- ther that treaty revived the debt in favor of the plain- tiff, and removed the bar to a recovery, which the law of Virginia had interposed ? The words of the fourth article of the treaty are, " that creditors on either side shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted." Now, it may be asked, who are creditors? There cannot be a creditor where there is not a debt; and British debts were extin- guished by the act of confiscation. The articles, there- HIS PRACTICE AT THE BAR. 37 fore, must be construed with reference to those credi- tors who had hona fide debts subsisting, in legal force, at the time of making the treaty ; and the word reco- very can have no effect to create a debt, where none previously existed. Without discussing the power of Congress to take away a vested right by treaty, the fair and rational construction of the instrument itself is sufficient for the defendant's cause. The words ought, surely^ to be very plain, that shall work so evi- dent a hardship, as to compel a man to pay a debt which he had before extinguished. The treaty itself does not point out any particular description of per- sons who were to be deemed debtors ; and it must be expounded in relation to the existing state of things. * It is not true, that the fourth article can have no meaning, unless it applies to cases like the present. For instance — there was a law of Virginia, which pro- hibited the recovery of British debts, that had not been paid into the treasury. These were hona fide subsisting debts ; and the prohibition was a legal im- pediment to the recovery, which the treaty was in- tended to remove. So, likewise, in several other States, laws had been passed authorizing a discharge of British debts in paper money, or by a tender of pro- perty at a valuation, and the treaty was calculated to guard against such impediments to the recovery of the sterling value of those debts. It appears, therefore, that, at the time of making the treaty, the state of things was such, that Virginia had exercised her sove- reign right of confiscation, and had actually received the money from the British debtors. If debts thus paid were within the scope of the fourth article, those who framed the article knew of the payment ; and, upon every principle of equity and law, it ought to be presumed, that the recovery, which they contemplated^ 38 LIFE OF JOHN MARSHALL. was intended against the receiving State, not against the paying debtor. Virginia possessing the right of compelling a payment for her own use, the payment to her, upon her requisition, ought to be considered as a payment to the attorney, or agent, of the British creditor. Nor is such a substitution a novelty in legal proceedings; a foreign attachment is founded upon the same principle. . . . ' This Act of Virginia must have been known to the American and British Commissioners; and, therefore, cannot be repealed without plain and explicit expres- sions directed to that object. Besides, the public faith ought to be preserved. The public faith was plighted by the Act of Virginia; and, as a revival of the debt in question would be a shameful violation of the faith of the State to her own citizens, the treaty should re- ceive any possible interpretation to avoid so dishonor- able and so pernicious a consequence. It is evident, that the power of the Government to take away a vested right, was questionable in the minds of the American Commissioners, since they would not exer- cise that power in restoring confiscated real estate ; and confiscated debts, or other personal estate, must come within the same rule,' &c. The abstract of an argument like this of Marshall's, must necessarily give the reader an imperfect idea of its power. Nevertheless, he cannot fail to be impressed with the vigor, rigorous analysis, and close reasoning that mark every sentence of it. We have seen that it elicited great admiration at the time of its delivery, and enlarged the circle of his reputation. His prac- tice, for several years before his final withdrawal from the Bar, was more extensive than that of any other lawyer in Virginia. The Duke de Liancourt, who was HIS PRACTICE AT THE BAR. 39 in Richmond, in 1797, speaking of Edmund Randolph, the ex-Secretary of State, says that ^he has great practice, and stands, in that respect, nearly on a par with Mr. J. Marshall, the most esteemed and cele- brated counsellor in this town. The profession of a lawyer is here, as in every other part of America, one of the most profitable. But, though the employment be here more constant than in Carolina, the practi- tioners emoluments are very far from being equally considerable. Mr. Marshall does not, from his prac- tice, derive above four or five thousand dollars per annum, and not even that sum every year.' ^ * Mr. J. Marshall,' says the Duke, after a more fami- liar acquaintance with the public characters at the capital of Virginia, ' conspicuously eminent as a pro- fessor 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, at times, 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 inca- pable of transgressing. He may be considered as a dis- tinguished character in the United States. His politi- cal 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 ambi- tion 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 Gene- ral Government, preferring the income derived from his professional labors (which is more than sufficient ' Travels, vol. ii., p. 38. 40 LIFE OF JOHN MARSHALL. 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 i)ropensity to indolence; but, even if this reproach were well-founded, he, nevertheless, dis- plays great superiority in his profession when he ap- plies his mind to business.' ^ We shall see, in the following chapters, that Mar- shall never sought office ; that, in most instances, he accepted it with reluctance, and always returned to his profession with renewed interest, and a determina tion to pursue it with undivided attention. His ambi tion, if that sentiment held any place in his mind at all, sought its gratification in the triumphs of the Bar. Tliough warmly and earnestly attached to the politi- cal principles of the Federal party, he seems to have had a repugnance to a political career. His nature was not sufficiently eager and aspiring to seek or covet its honors. When he engaged in the public service, it was, for the most part, for some special purpose, and on some special occasion. In truth, the insinu- ation that selfish ambition influenced either his sen- timents or conduct finds no support in any act of his life. '^ven by his friends he is taxed with some little propensity to indolence,' says the Duke de Liancourt; and his friends, we suspect, were not unjust to him. In truth, he was something of a truant. But such were the vigor and comprehension of his mind, that he could better affi)rd, than most men, to indulge a fondness for social, and even convivial enjoyment. ' This is a mistake ; Marshall being a native of Fauquier County. ' Travels, vol. ii., p 62 HIS PRACTICE AT THE BAR. 41 It was hardly possible for a lawyer of Marshall's conceded abilities, and great personal popularity, to keep aloof from public life during the eventful period in which he lived. Having, therefore, seen what suc- cess crowned his exertions at the Bar, we shall now proceed to trace his various services to the public, at home and abroad. CHAPTER V. 1782-1788. MEMBER OF THE VIRGINIA LEGISLATURE. The political career of John Marshall is prominently distinguished for his devotion to the Union of the States, and a government competent to maintain it. He early perceived the inadequacy of the Confedera- tion, and the absolute necessity of a more comprehen- sive and vigorous central authority. He belonged, from the outset, to the party who would strengthen the General Government, and enable it to execute the powers with which it might be invested, independently of the several States. Virginia was the State of bis birth, and the home of his affections ; but the United States constituted his country — a country dearer and more comprehensive than the local limits within which he was born. His attachment to the Union was formed early, and fostered by the circumstances that attended his outset in life. * When I recollect,' thus he wrote long after to a friend, ' the wild and enthusiastic notions with which my political opinions of that day were tinctured, I am disposed to ascribe my devotion to the Union, and to a government competent to its preservation, at least, as much to casual circumstances as to judgment. I had grown up at a time when the love of the Union, 42 MEMBER OF VIRGINIA LEGISLATURE. 43 and the resistance to the claims of Great Britain, were the inseparable inmates of the same bosom ; when pa- triotism and a strong fellow-feeling with our suffering fellow-citizens of Boston were identical ; when the maxim, "United we stand; divided we fall," was the maxim of every orthodox American. And I had im- bibed these sentiments so thoroughly, that they con- stituted 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 in the habit of considering America as my country, and Con- gress as my government.' * These sentiments were confirmed by the progress of events, and his experience in the Assembly of Vir- ginia. He was elected a member of that body in the spring of 1782, and in the autumn a member of the Executive Council. He knew what hardships the army had endured ; he had partaken their sufferings, and ' my immediate entrance into the State Legisla- ture,' said he in the letter from which the preceding extract is taken, ' opened to my view the causes which had been chiefly instrumental in au2;mentin"; those suf- ferings; and the general tendency of State politics con- vinced me, that no safe and permanent remedy could be found, but in a more efficient and better organized General Government.'^ At this time, the Federal treasury was destitute of money, and the army without pay, provisions or cloth- mg. The non-compliance of the States with the requi- sitions of Congress threatened the most disastrous con- ' Story's Discourse on the Life, &c., of John Marshall. * Ibid. 44 LIFE OF JOHN MARSHALL. sequences. We have seen, in the Life of Rutledge, that that body sent a deputation to the Eastern and Southern States, to explain the condition of public afiairs, and the danger to which the country was ex- posed by the delinquency of the several members of the Confederacy. Rutledge and Clymer, who were deputed to visit the Southern States, were permitted to make a personal address to the Virginia Assembly.^ Of this Assembly Marshall was a member; and a steady advocate of all measures that tended to strengthen the Federal authority, and enable it to perform its obligations to the army, and the public creditors. His vindications of the claims of the army upon the country were constant and earnest, and awakened their gratitude. But so feeble was the Confederacy, and so languid and exhausted the States, that he clearly perceived the impossibility of reviving the public spirit, and restoring the public credit, without the establishment of a more vigorous and comprehensive system of government. This was the leading idea of his scheme of politics. On the 3d of January, 1783, he was married to Mary Willis Ambler, a daughter of Jacqueline Ambler, then Treasurer of Virginia. He had become attached to this lady before he left the army; an attachment which continued with unabated fervor to the end of his days. She died several years before him ; but he cherished her memory with unaffected tender- ness, and in his will described her as a sainted spirit that had fled from the sufferings of life. About the time of his marriage, he fixed his resi- dence in Richmond. Desirous of devoting himself more closely to his profession, he resigned his seat in ' On the 14th of June, 1782. MEMBER OF VIRGINIA LEGISLATURE. 45 the Executive Council. But he was not permitted thus to withdraw from public life. His old friends, neighbors, and former constituents of Fauquier County, immediately after his resignation, namely, in the spring of 1784, again elected him a member of the Assembly. Three years later, Henrico, his adopted county, paid him the same tribute of respect. At the time of this last election, the affairs of the United States were fast sinkinii; into utter disorder and confusion. Reflecting minds beheld the progress of events with the most gloomy forebodings. They saw that immediate and effectual reform alone could arrest the downward tendency of things. To accomplish that object they now earnestly addressed themselves. Shall the arm of the Federal Government be strengthened ; shall it be invested with larger and more effectual powers over the commerce, the money, the foreign and mutual relations of the States; shall it have a revenue independent of them, and authority to carry into effect its measures without their instrumentality? These were the questions that now awakened and agi- tated the public mind. Marshall's judgment, reflec- tion, and experience, alike concurred in giving them an affirmative answer. But in all the States, and par- ticularly in Virginia, there was a party who were actu- ated by an extreme jealousy of national sovereignty. Although it was notorious that the Articles of Con- federation had proved totally inadequate to all the purposes of a government, they insisted that, with some slight modifications, they conferred on the cen- tral authority all the power with which it was either prudent or safe to invest it. Rather than give it more, they would risk a dissolution of the Union; believing that a consolidated government was more 46 LIFE OF JOHN MARSHALL. to be dreaded, than the possible separation of the States.^ Against notions like these, Marshall earnestly pro- tested. He believed that the salvation of his country depended on the prevalence of more enlarged views, and more solid principles. In the Assembly, in popu- lar meetings, he maintained the necessity of a more vigorous scheme of government, not only to preserve the Union, but to insure its benefits. The doctrines he now advocated formed the basis of his political creed through life. He adhered to them when they were in the ascendant, and after they had fallen into disfavor. From first to last, he was a Federalist. * Among innumerable false, unmoVd, Unshaken, unseduc'd, unterrified; His loyalty he kept, his love, his zeal.* He hailed the call of the Federal Convention as an auspicious event; and, without hesitation, vindicated the result of its labors. ' Judge Story has said that ' the question, whether the Union ought to be continued, or dissolved by a total separation of the States, was freely discussed,' in the halls of the Virginia Legislature ; * and either side of it was maintained, not only without reproach, but with an uncompromising fearlessness of consequences.' Discourse on Mar- shall, p. 25. In this the learned Judge is, probably, in error. There were in Virginia, as in every other State, enemies of the Union ; but they were not to be found, we apprehend, among her public men. Many of these, indeed, protested against conferring on the General Government what they considered dangerous powers ; but they pro- fessed great attachment to the Union of the States. Said George Mason in the Virginia Convention, * I have never, in my whole life, heard one single man deny the necessity and propriety of tlie Union.' And Governor Randolph, on the same occasion, spoke of a dissolu- tion of the Union, as that deplorable thing ' which no man yet haa dared openly to advocate.' MEMBER OF VIRGINIA LEGISLATURE. 47 *In the course of the session of 1788/ he says, Hhe increasing efforts of the enemies of the Constitution made a deep impression ; and before its close, a great majority showed a decided hostility to it. I took an active part in the debates on this question, and was uniform in support of the proposed Constitution.* With these sentiments, he was elected a member of the Virginia Convention, and in the next chapter we Bhall see the part he took in its deliberations. CHAPTER VI. 1788. MEMBER OF THE VIRGINIA CONVENTIQI*. Personally, Marshall was the most popular of men. His serene and joyous temper, his kind and generous heart, his exemption from pride and affectation, his moderation, candor, and integrity, attracted and fixed the regards of men. Though party spirit might run high, and the principles he espoused be little in favor, he never failed, when a candidate, to secure his election. A conspicuous instance of this personal weight and influence was his election as a member of the Virginia Convention, which met to decide on the ratification of the Federal Constitution. The current of opinion had set strongly against that instrument throughout Virginia. A majority of the voters of Hen- rico County were supposed to be hostile to it. Never theless, Marshall, with his well-known opinions, cam»r' forward as a candidate for the Convention. * The questions,' he said afterwards, * which wei d perpetually recurring in the State Legislatures ; an I which brought annually into doubt principles whica I thought most sacred; which proved, that everything was afloat, and that we had no safe anchorage ground ; gave a high value, in my estimation, to that article in the Constitution which imposes restrictions on the 48 MEMBER OF VIRGINIA CONVENTION. 49 Stales. I was, consequently, a determined advocate for its adoption, and became a candidate for the Con- vention.'^ His opinions constituted the only obstacle to his election ; and the determined effort that was made, on that ground, to defeat him, signally failed. 'Parties,' as he subsequently said, 'had not yet be- come so bitter as to extinguish the private affections;' and he was elected by a considerable majorit3\ The Convention assembled at Richmond on the 2d day of June, 1788. It was composed of the best abili- ties of Virginia. The fame of the speakers, and the magnitude of the question that was to engage their powers, created a vast expectation. * Industry deserted its pursuits, and even dissipa- tion gave up its objects, for the superior enjoyments which were presented by the hall of the Convention. Not only the people of the town and neighborhood, but gentlemen from every quarter of the State, were seen thronging to the metropolis, and speeding their eager way to the building in which the Convention held its meetings. Day after day, from morning till night, the galleries of the house were continually filled with an anxious crowd, who forgot the inconvenience of their situation in the excess of their enjoyment; and far from giving any interruption to the course of the debate, increased its interest and solemnity by their silence and attention. No bustle, no motion, no sound, was heard among them, save only a slight movement, when some new speaker arose, whom they were all eager to see as well as to hear; or when some master- stroke of eloquence shot thrilling along their nerves, and extorted an involuntary and inarticulate murmur. ' Story's Discourse, p. 28. 60 LIFE OF JOHN MARSHALL. Day after day was this banquet of the mind and of the heart spread before them, with a delicacy and va- riety which could never cloy.' * Conspicuous among those who opposed the ratifica- tion of the Constitution were Patrick Henry, George Mason, and William Grayson ; a combination of elo- quence, vigor, and genius, not often surpassed, and sel- dom equalled. Foremost among those who supported it were James Madison and Edmund Randolph. On the same side were arrayed, among other distinguished names, the venerable Edmund Pendleton, who presided over the deliberations of the Convention; James Innis, the Attorney-General of Virginia, a gentleman of great eloquence, "^ eloquence,' said Patrick Henry, ^splendid, magnificent, and sufficient to shake the hu- man mind,' George and William Nicholas, and John Marshall. The after-acquired renown of the latter gives a sort of retroactive interest to his efforts on this occasion ; but, even disconnected with his subsequent career, they will be found to possess sufficient merit to fore- show great reputation as a debater. That perfect ex- emption from needless incumbrance of matter or orna- ment, which has been pointed out as characteristic of all his intellectual displays, and as the effect, in some degree, of an aversion to the labor of thinking, is equally evinced in the speeches we are about to lay before the reader. We could wish, at the same time, to give him an accurate idea of the speaker's manner in public debate. That manner was peculiar, but effective. In nothing, perhaps, did it emulate the un- rivalled oratorical qualities of Patrick Henry. Indeed, ' Life of Patrick Henry, p. 293. MEMBER OF VIRGINIA CONVENTION. 51 a greater contrast could hardly be conceived than be- tween these two men. The one had passion, fire, im- petuosity, and, as shown by these debates, vigorous conceptions and clear ideas. The other depended on reason alone, and yet, when in full career, held the attention of his audience with as firm a grasp as his more eloquent opponent. His exordium, however, was little calculated to create expectation, or awaken sympathy. ' So great a mind, perhaps, like large bodies in the physical world, is with difiiculty set in motion. That this is the case with Mr. Marshall's is manifest, from his mode of entering on an argument, both in conver- sation and in public debate. It is difficult to rouse his faculties : he begins with reluctance, hesitation, and vacancy of eye : presently, his articulation be- comes 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, majestic, smooth, and strong. He reminds one of some great bird, which flounders and flounces on the earth for awhile, before it acquires imjaeius to sustain its soar- ing flight." Marshall's first speech in the Convention was on the power of taxation ; but as the debate had been discursive, he did not confine his attention exclusively to that topic, and replied to many of the objections ' ' Sketches and Essays of Public Characters,' by Francis W. Gil- mer. i* 52 LIFE OF JOHN MARSHALL. that had been urged against the Constitution as a whole. * I conceive,' said he, * that the object of the discus- sion now before us is, whether democracy or despotism be most eligible. I am sure that those who framed the system submitted to our investigation, and those who now support it, intend the establishment and security of the former. The supporters of the Constitution claim the title of being firm friends of the liberty and the rights of mankind. They say that they consider it as the best means of protecting liberty. We, Sir, idolize democracy. Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any monarchy, because we are convinced that it has a greater tendency to secure our liberty, and promote our happiness. We admire it, because we think it a well-regulated democracy. It is recommended to the good people of this country'; they are, through us, to declare whether it be such a plan of government as will establish and secure their freedom. ' Permit me to attend to what the honorable gentle- man [Patrick Henry] has said. He has expatiated on the necessity of a due attention to certain maxims; to certain fundamental principles, from which a free people ought never to depart. I concur with him in the propriety of the observance of such maxims. They are necessary in any government, but more essential to a democracy than to any other. What are the fa- vorite maxims of democracy? A strict observance of justice and public faith, and a steady adherence to vir- tue. These, Sir, are the principles of a good govern- ment. No mischief, no misfortune, ought to deter us from a strict observance of justice and public faith. Would to Heaven that these principles had been ob- MEMBER OF VIRGINIA CONVENTION. 53 served under the present government ! Had this been the case, the friends of liberty would not be so willing now to part with it. Can we boast that our govern- ment is founded on these maxims? Can we pretend to the enjoyment of political freedom or security, when we are told that a man has been, by an Act of Assem- bly, struck out of existence without a trial by jury, without examination, without being confronted with his accusers and witnesses, without the benefits of the law of the land ? Where is our safety, when we are told that this act was justifiable, because the person was not a Socrates ? What has become of the worthy member's maxims? Is this one of them? Shall it be a maxim, that a man shall be deprived of his life without the benefit of law ? Shall such a deprivation of life be justified by answering, that the man's life was not taken secundum o,rtem because he was a bad man ? ^ Shall it be a maxim, that government ought not to be empowered to protect virtue ? ' ' Marshall here refers to the case of Josiah Phillips, which had been adduced by Governor Randolph as an instance of gross depar- ture from national principles, as well as a violation of the Constitution of Virginia. The facts of the case were thus stated by Randolph : — ' From mere reliance on general reports, a gentleman in the House of Delegates informed the House, that a certain man (Phillips) had com- mitted several crimes, and was running at large, perpetrating other crimes. He, therefore, moved for leave to attaint him j he obtained that leave instantly ; no sooner did he obtain it, than he drew from his pocket a bill ready written for that effect; it was read three times in one day, and carried to the Senate. I will not say that it passed the same day through the Senate; but he was attainted very speedily and precipitately, without any proof better than vague reports. With- out being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and was afterwards actually executed. Was this arbitrary de- privation of life, the dearest gift of God to man, consistent with the genius of a republican government? Is this compatible with the 54 LIFE OF JOHN MARSHALL. ' He says, we wish to have a strong, energetic, pow- erful government. We contend for a well-regulated democracy. He insinuates that the power of the gov- ernment has been enlarged by the Convention, and that we may apprehend it will be enlarged by others. The Convention did not, in fact, assume any power. spirit of freedom ? This, Sir, has made the deepest impression on my heart, and I cannot contemplate it without horror,' — Elliott's Debates, vol. iii., p. 66. Patrick Henry thus replied : — ' The honorable gentleman haa given you an elaborate account of what he judges tyrannical legisla- tion, and an ex post facto law, in the case of Josiah Phillips. He has misrepresented the facts. That man was not executed by a tyran nical stroke of power. Nor was he a Socrates. He was a fugitive murderer, and an outlaw ; a man who commanded an infamous ban- ditti, and at a time when the war was at the most perilous stage. He committed the most cruel and shocking barbarities. He was an enemy to the human name. Those who declare war against the human race may be struck out of existence as soon as they are apprehended. He was not executed according to those beautiful legal ceremonies which are pointed out by the laws in criminal cases. The enormity of his crimes did not entitle him to it. I am truly a friend to legal forms and methods ; but, Sir, in this case the occasion warranted the mea- sure. A pirate, an outlaw, or a common enemy to all mankind, may be put to death at any time. It is justified by the laws of nature and nations.' — Ibid., p. 140. When this act of attainder passed, Henry was the Governor of Vir- ginia, and Jefferson a member of the Assembly. Randolph, who had been hard pressed by Henry in debate, and arraigned for inconsis- tency in now supporting the Constitution, when, as a member of the Federal Convention, he had refused to sign it, brought forward the case of Phillips as a means of retaliation. But Jefferson says that Phillips was not executed under the act of attainder ; that he was in- dicted at common law for either robbery or murder^ was regularly tried, convicted, and executed. No use, he says, was ever made of the act of attainder. Grovernor Randolph acted for the Common- wealth in the prosecution ; he being, at that time, Attorney-Greneral. Jefferson supposes that there must have been some mistake in the' report of Randolph's statement of the case in the Convention, as well ae in Henry's reply. — ISee Jefferson's Works, vol. vi., pp 369, 440. MEMBER OF VIRGINIA CONVENTION. 5o They have proposed to our consideration a scheme of government which they thought advisable. We are not bound to adopt it, if we disapprove of it. Had not every individual in this community a right to tender that scheme which he thought most conducive to the welfare of his country ? Have not several gentlemen already demonstrated that the Convention did not ex- ceed their powers? But the Congress have the power of making bad laws, it seems. The Senate, with the President, he informs us, may make a treaty which shall be disadvantageous to us ; and that, if they be not good men, it will not be a good Constitution. I shall ask the worthy member only, if the people at large, and they alone, ought to make laws and treaties? Has any man this in contemplation ? You cannot ex- ercise the powers of government personally yourselves. You must trust to agents. If so, will you dispute giving them the power of acting for you, from an ex- isting possibility that they may abuse it ? As long as it is impossible for you to transact your business in person, if you repose no confidence in delegates, be- cause there is a possibility of their abusing it, you can have no government ; for the power of doing good is inseparable from that of doing some evil.' * Let me pay attention to the observation of the gen- tleman who was last up [Mr. Monroe], that the power of taxation ought not to be given to Congress. This subject requires the undivided attention of this House. This power I think essentially necessary ; for, without it, there will be no efficiency in the government. We have had a sufficient demonstration of the vanity of depending on requisitions. How, then, can the Gene- ral Government exist without this power? The possi- bility of its being abused is urged as an argument against its expediency. To very little purpose did 56 LIFE OF JOHN MARSHALL Virginia discover the defects in the old system ; to little purpose, indeed, did she propose improvements; and to no purpose is this plan constructed for the pro- motion of our happiness, if we refuse it now, because it is possible it may be abused. The Confederation has nominal powers, but no means to carry them into effect. If a system of government were devised by more than human intelligence, it would not be effec- tual if the means were not adequate to the power. All delegated powers are liable to be abused. Arguments drawn from this source go in direct opposition to the government, and in recommendation of anarchy. The friends of the Constitution are as tenacious of liberty as its enemies. They wish to give no power that will endanger it. They wish to give the government powers to secure and protect it. Our inquiry here must be, whether the power of taxation be necessary to perform the objects of the Constitution, and whether it be safe, and as well guarded as human wisdom can do it^ What are the objects of the national government ? To protect the United States, and to promote the general welf^ire. Protection, in time of war, is one of its prin- cipal objects. Until mankind shall cease to have am- bition and avarice, wars will arise.' ' There must be men and money to protect us. How are armies to be raised? Must we not have money for that purpose? But the honorable gentle- man says that we need not be afraid of war. Look at history, which has been so often quoted. Look at the great volume of human nature. They will foretell you that a defenceless country cannot be secure. The na- ture of man forbids us to conclude that we are in no danger from war. The passions of men stimulate them to avail themselves of the weakness of others. The Powers of Europe are jealous of us. It is our interest MEMBER OF VIRGINIA CONVENTION. 57 to watch their conduct, and guard against them. They must be pleased with our disunion. If we invite them, by our weakness, to attack us, will they not do it ? If we add debility to our present situation, a partition of America may take place. It is, then, necessary to give the government that power, in time of peace, which the necessity of war will render indispensable, or else we shall be attacked unprepared. The expe- rience of the world, a knowledge of human nature, and our own particular experience, will confirm this truth. When danger shall come upon us, may we not do what we were on the point of doing once already ; that is, appoint a dictator We may now regu- late and frame a plan that will enable us to repel attacks, and render a recurrence to dangerous expe- dients unnecessary. If we be prepared to defend our- selves, there will be little inducement to attack us. But, if we defer giving the necessary power to the Gene- ral Government till the moment of danger arrives, we shall give it then, and with an uTisjpariiig hand.' ' I defy you to produce a single instance where re- quisitions on several individual States, composing a Confederacy, have been honestly complied with. Did gentlemen expect to see such punctuality complied with in America? If they did, our own experience shows the contrary.' ' A bare sense of duty, or a re- gard to propriety, is too feeble to induce men to com- ply with obligations. We deceive ourselves, if we ex- pect any efficacy from these. If requisitions will not avail, the government must have the sinews of war some other way. Requisitions cannot be effectual. They will be productive of delay, and will ultimately be inefficient. By direct taxation, the necessities of the government will be supplied in a peaceable man- ner, without irritating the minds of the peoole. But 58 LIFE OF JOHN MARSHALL. requisitions cannot be rendered efficient without a civil war; without great expense of money, and the blood of our citizens.' * Is the system so organized as to make taxation dangerous ? . . . I conceive its organization to be suffi- ciently satisfactory to the warmest friend of freedom. No tax can be laid without the consent of the House of Representatives. If there be no impropriety in the mode of electing the Representative, can any danger be apprehended ? They are elected by those who can elect Representatives in the State Legislature. How can the votes of the electors be influenced ? By no- thing but the character and conduct of the men they vote for.' ' If they are to be chosen for their wis- dom, virtue and integrity, what inducement have they to infringe on our freedom? We are told that they may abuse their power. Are there strong motives to prompt them to abuse it ? Will not such abuse mili- tate against their own interest ? Will not they, and their friends, feel the effects of iniquitous measures ? Does the Representative remain in office for life? Does he transmit his title of Representative to his son ? Is he secured from the burden imposed on the commu- nity ? To procure their re-election, it will be neces- sary for them to confer with the people at large, and convince them that the taxes laid are for their good. If I am able to judge on the subject, the power of tax- ation now before us is wisely conceded, and the Repre- sentatives wisely elected.' ' The extent of the country is urged as another ob- jection, as being too great for a republican govern- ment. This objection has been handed from author to author, and has been certainly misunderstood and misapplied. To what does it owe its source ? To ob- servations and criticisms on governments, where repre- MEMBER OF VIRGINIA C0N7EJNTI0N. 59 sentation did not exist. As to the legislative power, was it ever supposed inadequate to any extent? Ex- tent of country may render it difficult to execute the laws, but not to legislate. Extent of country does not extend the power. What will be sufficiently energetic and operative in a small territory, will be feeble when extended over a wide-extended country. The gentle- man tells us there are no checks in this plan. What has become of his enthusiastic eulogium on the Ame- rican 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 he pro- motes his own, he promotes that of the community. When we consult the common good, we consult our own. When he desires such checks as these, he will find them abundantly here. They are the best checks. What has become of his eulogium on the Virginia Constitution ? Do the checks in this plan appear less excellent than those of the Constitution of Virginia ? If the checks in the Constitution be compared to the checks in the Virginia Constitution, he will find the best security in the former.' ' The worthy member [Patrick Henry] has con- cluded his observations by many eulogiums on the British Constitution. It matters not to us whether it be a wise one or not. I think that, for America at least, the government on your table is very much supe- rior to it. I ask you, if your House of Representatives would be better than it is, if a hundredth part of the people were to elect a majority of them, if your Sena- tors were for life, would they be more agreeable to you ? If your President were not accountable to you for his conduct — if it were a constitutional maxim, 60 LIFE OF JOHN MARSHALL. that he could do no wrong — would you be safer than you are now ? If you can answer, Yes, to these ques- tions, then adopt the British Constitution. If not, then, good as that government may be, this is better. ' The worthy gentleman who was last up [Monroe], saxd the confederacies of ancient and modern times were not similar to ours, and that, consequently, rea- sons which applied against them could not be urged against it. Do they not hold out one lesson very use- ful to us ? However unlike in other respects, they re- semble it in its total inefficacy. They warn us to shun their calamities, and place in our government those necessary powers, the want of which destroyed them. I hope we shall avail ourselves of their misfortunes, without experiencing them. There was something peculiar in one observation he made. He said that those who governed the cantons of Switzerland were purchased by foreign powers, which was the cause of their uneasiness and trouble. How does this apply to us ? If we adopt such a government as theirs, will it not be subject to the same inconvenience ? Will not the same caus-^ produce the same effect ? What shall protect us from it ? What is our security ? He then proceeded to say, the causes of war are removed from us ; that we are separated by the sea from the powers of Europe, and need not be alarmed. Sir, the sea makes them neighbors to us. Though an immense ocean divides us, we may speedily see them with us. What dangers may we not apprehend to our com- merce ? Does not our naval weakness invite an attack on our commerce ? May not the Algerines seize our vessels ? Cannot they, and every other predatory or maritime nation, piUage our ships, and destroy our commerce, without subjecting themselves to any in- convenience ? He would, he said, give the General Gov- MEMBER OF VIRGINIA CONVENTION. 61 ernment all necessary powers. If anything be nece •- sary, it must be so to call forth the strength of the Union when we may be attacked, or when the general purposes of America require it. The worthy gentle- man then proceeded to show, that our present exigen- cies are greater than they ever will be again. Who can penetrate into futurity ? How can any man pre- tend to say that our future exigencies will be less than our present? The exigencies of nations have been generally commensurate to their resources. It would be the utmost impolicy to trust to a mere possibility of not Ixiing attacked, or obliged to exert the strength of the community.' 'He then told you that your continental government will call forth the virtue and talents of America. This being the case, will they encroach on the power of the State governments? Will our most virtuous and able citizens wantonly attempt to destroy the liberty of the people? Will the most virtuous act the most wickedly? I differ in opinion from, the worthy gentleman. I think the virtue and talents of the members of the Generfil Government will tend to the security, instead of the destruction, of our liberty. I think that the power of direct taxation is essential to the existence of the General Government, and that it is safe to grant it. If this power be not necessary, and as safe from abuse as any delegated power can possibly be, then, T say that the plan before you is unnecessary; for it im- ports not what system we have, unless it have the power of protecting us in time of peace and war.' Marshall next addressed the Convention in support of that clause of the Constitution which gives Congress power to provide for arming, organizing, and disci- plining the militia, and governing those in the actual 62 LIFE OF JOHN MARSHALL. Bervice of the Union. It had been attacked by Patrick Henry as a very alarming power. He declared that, as the clause expressly vested the General Government with power to call out the militia to suppress insurrec- tions, &c., it appeared to him, most decidedly, that the power of suppressing insurrections was exclusively given to Congress. If it remained in the States, it was by implication. Marshall asked, in reply, if gentlemen were serious •when they asserted that, if the State governments had power to interfere with the militia, it was by implica- tion. ' If they were, he asked the Committee whether the least attention would not show that they were mis- taken. The State governments did not derive their powers from the General Government ; but each g jv- ornment derived its powers from the people, and each was to act according to the powers given to it. Would any gentleman deny this ? He demanded if powers not given were retained by implication. Could any man say so ? Could any man say that this power was not retained by the States, as they had not given it away? For, says he, doee not a power remain until it is given away ? The State Legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away.' 'The truth is, that when power is given to the General Legislature, if it was in the State Legislature before, both shall exer- cise it ; unless there be an incompatibility in the exer- cise by one to that by the other, or negative words precluding the State governments from it. But there are no negative words here. It rests, therefore, with the States. To me it appears^ then, unquestionable that the State governments can call forth the militia, in case the Constitution should be adopted, in the MEMBER OF VIRGINIA CONVENTION. 63 sa^ne ma.nner as they would have done before its adoption. ' When the government is drawn from the people, and depending on the people for its continuance, 'op- pressive measures will not be attempted, as they will certainly draw on their authors the resentment of those on whom they depend. On this government, thus de- pending on ourselves for its existence, I will rest my safety, notwithstanding the danger depicted by the honorable gentleman. I cannot help being surprised th-^t the worthy member thought this power so dan- gerous. What government is able to protect you in time of war ? Will any State depend on its own exer- tions ? The consequence of such dependence, and with- holding this power from Congress, will be, that State will fall after State, and be a sacrifice to the want of power in the General Government. United we are strong, divided we fall. Will you preveut the General Government from drawing the militia of one State to another, when the consequence would be, that every State must depend on itself? The enemy, possessing the water, can quickly go from one State to another. No State will spare to another its militia, which it conceives necessary for itself It requires a superin- tending power in order to call forth the resources of all to protect all. If this be not done, each State will fall a sacrifice. This system merits the highest ap- plause in this respect. The honorable gentleman said that a general regulation may be made to inflict pun- ishments. Does he imagine that a militia law is to be ingrafted on the scheme of government, so as to render it incapable of being changed ? The idea of the worthy member supposes that men renounce their own in- terests. This w^ould produce general inconveniences throughout the Union, and would be equally opposed 64 LIFE OF JOHN MARSHALL. by all the States. But the worthy member fears, that in one part of the Union they will be regulat«jd arid disciplined, and in another neglected. This danger is enhanced by leaving this power to each State ; for some States may attend to their militia, and others may neglect them. If Congress neglect our militia, we can arm them ourselves. Cannot Virginia import arms ? Cannot she put them into the hands of her militia men ?' The judicial power bestowed on the General Gov- ernment by the Constitution, was denounced by the opponents of that instrument with great earnestness. It was said that its exercise might destroy the dearest rights of the community; that the effect and operation of the Federal Courts would go to the destruction of the State governments. To arguments like these, and of a similar strain, Marshall thus replied : — ' Mr. Chairman, this part of the plan before us is a great improvement on that instrument from which we are now departing. Here are tribunals appointed for the decision of controversies, which were before either not at all, or improperly, provided for. That many benefits will result from this to the members of the col- lective society, every one confesses. Unless its organi- zation be defective, and so constructed as to injure, in- stead of accommodating, the convenience of the people, it merits our approbation. After such a candid and fair discussion by those gentlemen who support it — after the very able manner in which they have inves- tigated and examined it — I conceived it would be no longer considered as so very defective, and that those who opposed it would be convinced of the impropriety of some of their objections. But I perceive that they MEMBER OF VIRGINIA CONVENTION. 65 still continue the same opposition. Gentlemen have gone on an idea that the Federal Courts will not determine the causes which may come before them, with the same fairness and impartiality with which other Courts de- cide. What are the reasons of this supposition ? Do they draw them from the manner in which the judges are chosen, or the tenure of their office ? What is it that makes us trust our judges? Their independence in office, and manner of appointment. Are not the judges of the Federal Court chosen with as much wis- dom as the judges of the State governments? Are they not equally, if not more independent ? If so, shall we not conclude that they will decide with equal im- partiality and candor? If there be as much wisdom and knowledge in the United States as in a particular State, shall we conclude that that wisdom and knowl- edge will not be equally exercised in the selection of judges?' ' With respect to its cognizance [the cognizance of the Federal judiciary] in all cases arising under the Con- stitution and the laws of the United States, he [George Mason] says that the laws of the United States being paramount to the laws of the particular State, there is no case, but what this will extend to. Has the Govern- ment of the United States power to make laws on every subject ? Does he understand it so ? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same State ? Can they go beyond the delegated powers ? If tliey were to 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 under their jurisdiction. They would declrre it void.' 5 66 LIFE OF JOHN MARSHALL. ' How disgraceful is it, that the State Courts cannot be trusted, says the honorable gentleman. What is the language of the Constitution ? Does it take away their jurisdiction ? Is it not necessary that the Fede- ral Courts should have cognizance of cases arising under the Constitution and the laws of the United States? What is the service or purpose of a judiciary, but to execute the laws in a peaceable, orderly man- ner, without shedding blood, or creating a contest, or availing yourselves of force? If this be the case, where can its jurisdiction be more necessary than here ?' ' With respect to disputes between a State, and the citizens of another State, its jurisdiction has been de- cried with unusual vehemence. I hope that no gen- tleman will think that a State will be called at the bar of the Federal Court.' Is there no such case at pre- sent ? Are there not many cases in which the Legis- lature of Virginia is a party, and yet the State is not sued ? It is not rational to suppose that the sovereign power should be dragged before a court. The intent is, to enable States to recover claims of individuals residing in other States. I contend that this construc- tion is warranted by the words ; but, say they, there will be partiality in it, if a State cannot be defendant — if an individual cannot proceed to obtain judgment against a State, though he may be sued by a State. It is necessary to be so, and cannot be avoided. I see a difficulty in making a State defendant, which does not prevent its being plaintiff. If this be only what can- not be avoided, why object to the system on that ' This, however, was actually done in the case of Chisholm v. Geor- gia. The decision of the Court in that case led to an amendment of the Constitution, forbidding such an exercise of authority. MEMBER OF VIRGINIA CONVENTION. 67 account? If an individual has a just claim against any particular State, is it to be presumed that, on ap- plication, he will not obtain satisfaction? But lio^w could a State recover any claim from a citizen of another State, without the establishment of these tri- bunals ? ' The honorable member objects to suits being insti- tuted in the Federal Courts, by the citizens of one State, against the citizens of another State. Were I to contend that this was necessary in all cases, and that the government, without it, would be defective, I should not use my own judgment. But are not the objections to it carried too far ? Though it may not, in general, be absolutely necessary, a case may hap- pen, as has been observed, in which a citizen of one State ought to be able to recur to this tribunal, to re* cover a claim from the citizen of another State. What is the evil which this can produce ? Will he get more than justice there? The independence of the judges forbids it. What has he to get? Justice. Shall we object to this, because the citizen of another State can obtain justice without applying to our State Courts? It may be necessary, with respect to the laws and re- gulations of commerce, which Congress may make. It may be necessary in cases of debt, and some other con- troversies. In claims for land, it is not necessary, but it is not dangerous. In the Court of which State will it be instituted ? said the honorable gentleman. It will be instituted in the Court of the State where the defendant resides, where the law can come at him, and no where else. By the laws of which State will it be determined ? said he. By the laws of the State where the contract was made. According to those laws, and those only, can it be decided. Is this a novelty ? No ; it is a principle in the jurisprudence 68 LIFE OF JOHN MARSHALL. of this Commonwealth, If a man contracted a debt in the East Indies, and it was sued for here, the decision must be consonant to the laws of that coun- try/ Such was the line of argument adopted by Marshall in support of the Federal Constitution. His speeches were evidently not premeditated ; but made on the spur of the occasion, and in reply to objections brought forward by his opponents. If not as comprehensive in their scope as the speeches of Madison, they were, nevertheless, vigorous, pointed, and adapted to the end he had in view. They were, chiefly, in answer to the arguments of Patrick Henry and George Mason. How they were estimated by the former may be in- ferred from his brief, but generous eulogium. 'I have,' said he, ' the highest veneration and respect for the honorable gentleman, and I have experienced his can- dor on all occasions.' After an earne^st debate of twenty-five days, a de- bate illustrated by an extraordinary display of elo- quence and ability, the Convention accepted the Con- stitution by a majority of ten votes.. The result, it has been thought, would have been difierent, had not the news arrived, while the Convention was yet in ses- sion, that nine States had already given their voice in its favor, fIlecting an argument which — characteristic of himself — no CONCLUSION. 247 art would be "able to elude, and no force resist." Our traveller remained a spectator, and took no part in what was said. ' At last one of the young men, remarking that it was impossible to combat with long established pre- judices, wheeled around, and with some familiarity exclaimed, " Well, my old gentleman, what think you of these things ?" If, said the traveller, a streak of vivid lightning had at that moment crossed the room, their amazement could not have been greater than it was with what followed. The most eloquent and un- answerable appeal was made for nearly an hour, by the old gentleman, that he ever heard or read. So perfect was his recollection, that every argument urged against the Christian religion was met in the order in which it was advanced. Hume's sophistry on the subject of miracles was, if possible, more per- fectly answered than it had already been done by Campbell. And in the whole lecture there was so much simplicity and energy, pathos and sublimity, that not another word was uttered. An attempt to describe it, said the traveller, would be an attempt to paint the sunbeams. It was now a matter of curiosity and inquiry who the old gentleman was. The traveller concluded it was the preacher from whom the pulpit eloquence was heard; but no, it was the Chief Justice of the United States.'^ If a stranger might not infer Marshall's greatness from his personal appearance, he could not long be in his company without perceiving his goodness, his un- This anecdote was originally published in the Winchester Re- publican, but preserved in durable form by being printed in Howe's Virginia Historical Collections, p. 275. 248 LIFE OF JOHN MARSHALL. affected kindness, and genial nature. ' Meet him in a stage-coach, as a stranger, and travel with him a whole day, and you would only be struck with his readiness to administer to the accommodations of others, and his anxiety to appropriate the least to himself. Be with him, the unknown guest at an inn, and he seemed adjusted to the very scene, partaking of the warm wel- come of its comforts, whenever found, and, if not found, resigning himself without complaint to its meanest arrangements. You would never suspect, in either case, that he was a great man ; far less, that he was the Chief Justice of the United States. But if, per- chance, invited by the occasion, you drew him into familiar conversation, you would never forget that you had seen and heard that " old man eloquent." ' ' He was fond of the young, and they found in him a cheerful and most agreeable companion. ' One, whose first recollection of him referred to his triumphal entry (for auch it was) into Richmond, on his return from France, and who, as a printer's boy, afterwards, for several years, was carrier of a newspaper to him, de. scribes him as "remarkably fond of boys' company—, always chatty — and always pleasant."^ The same printer's boy having been transferred to Washington, in 1800, while Marshall was Secretary of State, re- newed his acquaintance with him. ' Again,' he says, * did the pleasing office of serving him with the " Washington Federalist" devolve on me. He resided in a brick building hardly larger than most of the kitchens now in use. I found him still the same plain, unostentatious John Marshall: always accessi- ' Story's Discourse, p. 52. * Southern Literary Messenger, vol. ii., p. 189. CONCLUSION. 249 hie, and always with a sraile on his countenance when I handed him the "Federalist." His kindness of manner won my affections; and I became devotedly attached to him.' ' No man was more just or more generous. In his dealings he was so scrupulous, as always to pre- fer his own loss to the possibility of his wronging another.^ In his practice at the Bar, he never know- ingly argued in defence of injustice, or took a legal advantage at the expense of moral honesty. He once endorsed a bond amounting to several thousand dol- lars; and the drawer having failed, he was called upon to pay it. He knew the bond could be avoided, because the holder had advanced the money at usuri- ous interest; but he was utterly incapable of throwing off the moral obligation in that way, and he paid it.^ His generosity was ' as large as his mind, and as unos- tentatious as his life.' We shall cite a single example. ' In passing through Culpepper, on his way to Fau- quier, he fell in company with Mr. S., an old fellow- officer in the army of the Revolution. In the course of conversation, Marshall learned that there was a lien upon the estate of his friend to the amount of $3000, about due, and he was greatly distressed at the prospect of impending ruin. On bidding farewell, Marshall privately left a check for the amount, which being presented to Mr. S., after his departure, he, impelled by a chivalrous independence, mounted, and ppur.'ed his horse until he overtook his friend. He thanked him for his generosity, but refused to accept it. " Southern Literary Messenger, vol. ii., p. 189. « Ibid. ' Howe's Virginia Historical Collections, p. 266. 250 LIFE OF JOHN MARSHALL. Marshall strenuously persisted in its acceptance, and the other as strongly persisted in not accepting. Finally, it resulted in a compromise, by which Marshall took security on the lien, but never called for pay.'^ He was a member, for nearly half a century, of the Ami- cable Society at Richmond, which was formed to re- lieve strangers and wayf\xrers in distress, for whom the law made no provision. In short, his unobtrusive acts of generosity were innumerable, and flowed from the spontaneous goodness of his heart. Upon the vexed and disagreeable, but important subject of slavery, his opinions were well known. He belonged to the Colonization Society, and manifested much interest in its objects. Though a slaveholder himself, he, nevertheless, regarded the institution as an incubus upon the prosperity of a State ; an incubus whose effects the Colonization Society might palliate, but could not remove. Until the British emancipa- tion in the West Indies, he always maintained that the abolition of slavery by legal enactment was im- practicable ; and that the evil was incurable, except by convulsion. After the experiment was actually made, he is said to have expressed hope as to the future of his beloved Virginia. Possibly, if he had lived to see the result in the West Indies, he might have anticipated less good from a similar experiment elsewhere. To promote the objects of the Colonization Society, he was in favor of an application to the seve- ral States for permanent aids ; but his chief reliance was upon the General Government. ' It is undoubt- edly of great importance,' he said, ' to retain the coun- tenance and protection of the General Government. Some of our cruisers stationed on the coast of Africa ' Howe's Virginia Historical Collections, p. 266. CONCLUSION. 251 would, at the same time, interrupt the slave-trade — a liorrid traffic, detested by all good men — and would protect the vessels and commerce of the colon}' from pirates who infest those seas. The power of the Gov- ernment to afford this aid is not, I believe, contested. I regret that its power to grant pecuniary aid is not equally free from question. On this subject I have always thought, and still think, that the proposition made by Mr. King, in the Senate, is the most un- exceptionable, and the most effective, that can be devised The lands are the property of the United States, and have hitherto been disposed of by the Government under the idea of absolute owner- ship.' ' Though taking no part in the political controversies of the day, Marshall manifested to the last a warm interest in them. To the prevailing politics of his native State he was invincibly opposed. Towards the latter part of his life, he viewed, with something of gloom and despondency, the future prospects of his country, from the ascendency of principles which he believed would destroy the efficiency and perpetuity of the General Government. In a letter to Judge Story, two years before his death, he says, ' I have just finished reading your great work,^ and wish it could be read by every statesman, and every would-be statesman in the United States. It is a comprehensive and an accurate commentary on our Constitution, formed in the spirit of the original text. In the South, ' Fifteenth Annual Report of the Colonization Society, p. 32. Let- ter from Marshall, December 14th, 1831. ^ Commentaries on the Constitution ; which were dedicated to Judge Marshall. 252 LIFE OF JOHN MARSHALL. we are so far gone in political metaphysics, that I fear no demonstration can restore us to common sense. The word " State Rights," as expounded by the reso- lutions of 1798, and the report of 1799, construed by our Legislature, has a charm against which all reason- ing is vain. Those resolutions, and that report, con- stitute the creed of every politician who hopes to rise in Virginia; and to question them, or even to adopt the construction given by their author, is deemed political sacrilege. The solemn and interesting admo- nitions of your concluding remarks will not, I fear, avail as they ought to avail against this popular frenzy. I am grateful for the very flattering terms in which you speak of your friend in many parts of this valuable work, as well as in the dedication. In despite of my vanity, I cannot suppress the fear, that you will be supposed by others, as well as myself, to have con- sulted a partial friendship farther than your deliberate judgment will approve. Others may not contemplate this partiality with as much gratification as its ob- ject.'' In a subsequent letter to Judge Story, he says : — * On my return, a day or two past, from an annual visit to our mountains, I had the real gratification of receiving a number of the New England Magazine for August last, containing an Essay, entitled " States- men : their Rareness and Importance," forwarded to me by yourself, and thank you truly for the real plea- sure afibrded by its perusal. The justness and solidity of its sentiments, the distinguished individual who is selected as an example of the real statesman,^ and the ' Stor/s Life and Letters, vol. ii., p. 135. July 31st, 1833. ■ Daniel Webster. CONCLUSION. 253 kind notice taken of an old friend who is under so many obligations to you, designate the author as cer- tainly as if his name had been affixed to the work. ^ It is in vain to lament, that the portrait which the author has drawn of our political and party men is, in the general, true. Lament it as we may, much as it may wound our vanity or our pride, it is still, in the main, true; and will, I fear, so remain In the South, political prejudice is too strong to yield to any degree of merit ; and the great body of the nation con- tains, at least appears to me to contain, too much of the same ingredient. To men who think as you and I do, the present is gloomy enough ; and the future presents no cheering prospect. The struggle now maintained in every State in the Union seems to me to be of doubtful issue ; but should it terminate con- trary to the wishes of those who support the enormous pretensions of the Executive, should victory crown the exertions of the champions of constitutional law, what serious and lasting advantage is to be expected from this result ? In the South (things may be less gloomy with you) those who support the Executive do not support the Government. They sustain the personal power of the President, but labor incessantly to impair the legitimate powers of the Government. Those who oppose the violent and rash measures of the Execu- tive (many of them nuUifiers, many of them seceders) are generally the bitter enemies of a constitutional government. Many of them are the avowed ad- vocates of a league ; and those who do not go the whole length, go great part of the way. What can we hope for in such circumstances? As far as I can judge, the Government is weakened, whatever 254 LIFE OF JOHN MARSHALL. party may prevail. Such is the impression I receive from the language of those around me.' ^ Though strongly opposed to the general policy of Jackson's Administration, and the principles upon which it was conducted, the Chief Justice warmly approved his proclamation and message against nulli- fication. Secession and nullification he regarded as political heresies of the most dangerous character; as theories utterly subversive of all stability in our Gov- ernment, and at war with its fundamental principles. Speaking of a dinner at the President's, about the time of the debate on the Force bill, Judge Story says, ' I forgot to say, that, notwithstanding I am " the most dangerous man in America,"^ the President specially invited me to drink a glass of wine with him. But, what is more remarkable, since his last proclamation and message, the Chief Justice and myself have be- come his warmest supporters, and shall continue so just as long as he maintains the principles contained in them. Who would have dreamed of such an occur- Marshall was fond of books, which, in his intervals of leisure, he read ' for delight.' His familiarity with general literature was extensive. The great masters of English letters were his favorite companions. He read novels with intense interest, and would spend the night over their alluring pages. He had formed a very high estimate of female genius, and the produc- tions of female authors he read with an interest in Story's Life and Letters, vol. ii., p. 172. October 6th, 1834. * So styled by General Jackson. • Story's Life and Letters, vol. ii., p. 117. January 27tb, 1833. CONCLUSION. 255 some sort proportioned to his admiration of their sex. Acknowledging the receipt of a discourse by Judge Story, he says, ' I have read it with real pleasure, and am particularly gratified with your eulogy on the ladies. It is matter of great satisfaction to me to find another judge who, though not as old as myself, thinks justly of the fair sex, and commits his sentiments to print. I was a little mortified, however, to find that you had not admitted the name of Miss Austin into your list of favorites. I had just finished reading her novels when I received your discourse, and was so much pleased with them, that I looked in it for her name, and was rather disappointed at not finding it. Her flights are not lofty, she does not soar on eagles' wings, but she is pleasing, interesting, equable, and yet amusing, I count on your making some apology for this omission.' ^ The Chief Justice had imbibed, in his youth, a love of poetry ; and the ^ sweetly uttered wisdom' of song he found a solace and delight in his age. No doubt these studies contributed very much to preserve his intellect in that vigor and freshness which it exhibited down to the very close of his life. His mind was not suffered to grow rigid by dwelling only on profes- sional topics ; but was variously exercised, which is ' healthful and sovereign for the understanding.' The constitution of the Chief Justice was robust, and his health good. From youth to age, he suffered but little from sickness. In his latter years, however, he was afflicted with that most excruciating malady, the stone. In October, 1831, he visited Philadel- phia, and submitted to an operation by Dr. Physick, • Story's Life and Letters, vol. i., p. 506. November 26th, 1826. 256 LIFE OF Jv/HN MARSHALL. which gave him relief. 'This case,' says Dr. Ran- dolph, ^ was attended with singular interest, in con- sequence of the exalted position of the patient, his ad- vanced age, and the circumstance of there being upwards of one thousand calculi taken from his blad- der It will be readily admitted that, in conse- quence of Judge Marshall's very advanced age, the hazard attending the operation, however skilfully per- formed, was considerably increased. I consider it but an act of justice, due to the memory of that good and great man, to state that, in my opinion, his recovery was, in a great degree, owing to his extraordinary self-possession, and to the calm and philosophical views which he took of his case, and the various cir- cumstances attending it. It fell to my lot to make the necessary preparations. In the discharge of this duty, I visited him on the morning of the day fixed on for the operation, two hours previously to that at which it was to be performed. Upon entering his room, I found him engaged in eating his breakfast. He received me with a pleasant smile upon his coun- tenance, and said, " Well, Doctor, you find me taking breakfast, and I assure you I have had a good one. I thought it very probable that this might be my last chance, and therefore I was determined to enjoy it, and eat heartily." I expressed the great pleasure which I felt at seeing him so cheerful, and said that I hoped all would soon be happily over. He replied to this, that he did not feel the least anxiety or uneasi- ness respecting the operation or its result. He said that he had not the slightest desire to live, laboring ander the sufferings to which he was then subjected ; that he was perfectly ready to take all the chances of an operation, and he knew there were many against him ; and that, if he could be relieved by it, he was CONCLUSION. 257 willing to live out his appointed time, but if not, would rather die, than hold existence accompanied with the pain and misery which he then endured. After he had finished his breakfiist, I administered to him some medicine : he then inquired at what hour the operation would be performed. I mentioned the hour of eleven. He said, " Very well ; do you wish me now for any other purpose, or may I lie down and go to sleep?" I was a good deal surprised at this question, but told him that if he could sleep it would be very desirable. He immediately placed himself upon the bed and fell into a profound sleep, and con- tinued so until I was obliged to rouse him in order to undergo the operation. He exhibited the same forti- tude, scarcely uttering a murmur throughout the whole procedure, which, from the peculiar nature of his complaint, was necessarily tedious." His situation had been considered dangerous, and, throughout the country, caused much anxiety : his happy recovery occasioned corresponding joy. ' Pray tell the Chief Justice,' wrote Judge Story to his friend Peters, ' how deeply every one here has been interested in his situation. He is beloved and reverenced here oeyond all measure, though not beyond his merits. Next to Washington, he stands the idol of all good men. And who so well deserves it? I look upon his judicial life as good now for at least six years longer ?' * Though recovering himself, he received, soon after, ' Memoir of Dr. P. S. Physick, by J. Randolph, M. D., p. 96, et seq. ' Story's Life and Letters, vol. ii., p. 70. Letter to Richard Peters, October 29th, 1831. 17 258 LIFE OF JOHN MARSHALL. a severe blow in the death of his wife, to whom he was ardently attached. She had suffered much from ill- health, and the tender and assiduous attention he paid to her, says Bishop Meade, was the most interest- ing and striking feature in his domestic character. * Mrs. Marshall was nervous in the extreme. The least noise was sometimes agony to her whole frame, and his perpetual endeavor was to keep the house, and yard, and outhouses, as free as possible from the slightest cause of distressing her; walking himself, at times, about the house and yard without shoes. On one occasion, when she was in her most distressing state, the town authorities of Richmond manifested their great respect for him, and sympathy for her, by having either the town-clock or town-bell muffled.'^ Marshall first met his future wife at York, while on a visit to his fatlier. Colonel Marshall, who was the commanding officer at that place. She was but fourteen years of age at the time, and it is stated to have been a case of love at first sight. It is also said, that he endeared himself to her flimily, ^ notwithstanding his slouched hat, and negligent and awkward dress, by his amiable manners, fine talents, and especially his love for poetry, which he read to them with deep pathos.' In proof of the ardor of his character, and the tender- ness of his attachment to his intended wife, his sister- in-law, Mrs. Carrington, remarks, that he often said to her, ' that he looked with astonishment on the present race of lovers,' so totally unlike what he had been him- self On his marriage, after paying the minister his fee, his sole remaining fortune was a guinea.^ ' Old Churches and Families of Virginia, vol. ii., p 222. • Ibid., vol. i., p. 99, note. CONCLUSION. 259 Mrs. Marshall died on the 25th of December, 1831. Her loss weighed heavily on his spirits. ' On going into the Chief Justice's room this morning,' says his friend, and brother judge, 'I found him in tears. He had just finished writing out for me some lines of General Burgoyne, of which he spoke to rae last even- ing as eminently beautiful and affecting. I asked him to change the purpose, and address them to you, which he instantly did, and you will find them accompanying this. I saw at once that he had been shedding tears over the memory of his own wife ; and he has said to me several times during the term, that the moment he relaxes from business he feels exceedingly de- pressed, and rarely goes through a night without weeping over his departed wife. She must have been a very extraordinary woman, so to have at^ tached him, and I think he is the most extraordinary man I ever saw, for the depth and tenderness of his feelings.' ^ The following affecting tribute to her memory was written by himself, December 25th, 1832 : — *This day of joy and festivity to the whole Chris- tian world is, to my sad heart, the anniversary of the keenest affliction which humanity can sustain. While all around is gladness, my mind dwells on the silent tomb, and cherishes the remembrance of the beloved object which it contains. ' On the 25th of December, 1831, it was the will of Heaven to take to itself the companion who had ' Story's Life and Letters, vol. ii., p. 86. Letter to Mrs. Story, March 4tli, 1832. 260 LIFE OF JOHN MARSHALL. sweetened the choicest part of my life, had rendered toil a pleasure, had partaken of all my feelings, and was enthroned in the inmost recess of my heart. Never can I cease to feel the loss, and to deplore it. Grief for her is too sacred ever to be profaned on this day, which shall be, during my existence, marked by a recollection of her virtues. 'On the 3d of January, 1783, I was united by the holiest bonds to the woman I adored. From the mo- ment of our union to that of our separation, I never ceased to thank Heaven for this, its best gift. Not a moment passed in which I did not consider her as a blessing from which the chief happiness of my life was derived. This never-dying sentiment, originating in love, was cherished by a long and close observation of as amiable and estimable qualities as ever adorned the female bosom. To a person which, in youth, was very attractive, to manners uncommonly pleasing, she jidded a fine understanding, and the sweetest temper which can accompany a just and modest sense of what was due to herself. She was educated with a profound reverence for religion, which she pre- served to her last moments. This sentiment, among her earliest and deepest impressions, gave a coloring to her whole life. Hers was the religion taught by the Saviour of man. She was a firm believer in the faith inculcated by the Church [Episcopal] in which she was bred. ' I have lost her, and with her have lost the solace of my life ! Yet she remains still the companion of my retired hours, still occupies my inmost bosom. When alone, and unemployed, my mind still recurs to her. More than a thousand times, since the 25th of December, 1831, have I repeated to myself the CONCLUSION. 261 beautiful lines written by General Burgoyne, under a similar affliction, substituting "Mary" for "Anna:" * " Encompassed in an angel's frame, An angel's virtues lay; Too soon did Heaven assert its claim, And take its own away ! My Mary's worth, My Mary's charms, Can never more return ! What now shall fill these widowed arms? Ah me ! My Mary's urn ! Ah me! Ah me! My Mary's urn!"" At the ensuing term of the Supreme Court (Janu- ary, 1833), the Chief Justice was at his post, and, though he had now attained the seventy-eighth year of his age, his health seemed fully re-established. 'The Court opened on Monday last,' says Judge Story, 'and all the Judges were present, except Judge Baldwin. They were in good health, and the Chief Justice espe- cially looked more vigorous than usual. He seemed to revive, and enjoy anew his green old age. He brought with him, and presented to each of us, a copy of the new edition of his Life of Washington, in- scribing in the fly-page of mine a very kind remark. . . Having some leisure on our hands, the Chief Justice and myself have devoted some of it to attendance upon the theatre, to hear Miss Fanny Kemble, who has been in the city the past week. We attended on Mon- day night, and, on the Chief Justice's entrance into the box, he was cheered in a marked manner. He behaved as he always does, with extreme modesty, and seemed not to know that the compliment was de- signed for him. We have seen Miss Kemble as Julia., ' Old Churches and Families of Virginia, vol. ii., p. 223, note. 262 LIFE OF JOHN MARSHALL. in the Hunchback, and as Mrs. Haller, in the Stran- ger. ... I have never seen any female acting at all comparable to hers. She is so graceful, that you for- get that she is not very handsome. In Mrs. Haller, she threw the whole audience into tears. The Chief Justice shed them in common with younger eyes.' ' The celebrity of Marshall, the reverence and aflfec- tion with which he was regarded by his own country- men, naturally made him an object of interest to stran- gers visiting the United States. And he inspired in them, as in every one who knew him, and became acquainted with his character, sentiments of venera- tion and esteem. Miss Martineau was in Washington the winter preceding his death, and she has thus re- corded her impressions of his appearance and conver- sation : — * With Judge Story,' she says, ' sometimes came the man to whom he looked up with feelings little short of adoration ; the aged Chief-Justice Marshall. There was almost too much mutual respect in our first meet- ing; we knew something of his individual merits and services; and he maintained through life, and carried to his grave, a reverence for woman as rare in its kind as in its degree. It had all the theoretical fervour and magnificence of Uncle Toby's, with the advantage of being grounded upon an extensive knowledge of the sex. He was the father and the grandfather of woman; and out of this experience he brought, not only the love and pity which their offices and position com- mand, and the awe of purity which they excite in the ' Story's Life and Letters, vol. ii., p. 116. Letter to Mrs. Story, January 2d, 1833. CONCLUSION. 263 minds of the pure, but a steady conviction of their in- tellectual equality with men ; and, with this, a deep sense of their social injuries. Throughout life he so invariably sustained their cause, that no indulgent libertine dared to flatter and humor, no sceptic, secure in the possession of power, dared to scoff at the claims of woman in the presence of Marshall, who, made clear-sighted by his purity, knew the sex far better than either. ' How delighted we were to see Judge Story bring in the tall, majestic, bright-eyed old man ! — old by chronology, by the lines on his composed face, and by his services to the republic ; but so dignified, so fresh, so present to the time, that no feeling of compassion- ate consideration for age dared to mix with the con- templation of him. ' The first evening, he asked me much about Eng- lish politics, and especially whether the people were not fast ripening for the abolition of our religious esta- blishment — an institution which, after a long study of it, he considered so monstrous in principle, and so injurious to true religion in practice, that he could not imagine that it could be upheld for anything but politi- cal purposes. There was no prejudice here, on account of American modes being different ; for he observed that the clergy were there, as elsewhere, far from being in the van of society, and lamented the existence of much fanaticism in the United States : but he saw the evils of an establishment the more clearly, not the less, from being aware of the faults in the administra- tion of religion at home. The most animated moment of our conversation was when I told him I was going to visit Mr. Madison, on leaving Washington. He in- stantly sat upright in his chair, and with beaming eyes began to praise Mr. Madison. Madison received 264 LIFE OF JOHN MARSHALL. the mention of Marshall's name in just the same man- ner : yet these men were strongly opposed in politics, and their magnanimous appreciation of each other un- derwent no slight or brief trial.' ' In the spring of this year (1835), and after the re- turn of the Chief Justice to Virginia, another English traveller spent a week at Richmond, enjoying the hos- pitality of its inhabitants; and to bis pen we are in- debted for the following sketch of the Chief Justice : ^ Judge Marshall, who is Chief Justice of the Su. preme Court, and, in fact. Lord Chancellor of the United States, is one of the most remarkable and dis- tinguished men that has adorned the Legislature of either shore of the Atlantic. He began life as a sol- dier; and, during the American war, served in the militia, where he rose to the rank of General :^ after which he came to the Bar, and passed through all its gradations to his present high position, which is, in my opinion, the proudest that an American can enjoy, not excepting that of President; inasmuch as it is less subject arbiirio popularis aurce ; and as the Court over which he presides can affirm and decide what is and what is not the Constitution of the United States. ' The Judge is a tall, venerable man, about eighty years of age, his hair tied in a cue, according to olden custom, and with a countenance indicating that sim- plicity of mind and benignity which so eminently dis- tinguish his character. As a judge he has no rival, his knowledge being profound, his judgment clear and ' Martineau's Western Travel, vol. i., p. 247, English ed. ' This is erroneous. A/fer the war, and not during the war, he served in the militia, and was appointed a militia general. CONCLUSION. 265 just, and his quickness in apprehending either the fal- lacy or truth of an argument as surprising. I had the pleasure of several long conversations with him, and was struck with admiration at the extraordinary union of modesty and power, gentleness and force, which his mind displays. What he knows he communicates without reserve; he speaks with a clearness of expres- sion, and in a tone of simple truth, which compel con- viction ; and on all subjects on which his knowledge is not certain, or which admit of doubt or argument, he delivers his opinion witli a candid diffidence, and with a deference for that of others, amounting almost to timidity : still, it is a timidity which would disarm the most violent opponent, and win respect and cre- dence from any auditor. I remember having often observed a similar characteristic attributed to the im- mortal Newton. The simplicity of his character is not more singular than that of his life ; pride, ostenta- tion, and hypocrisy are " Greek to him ;" and he really lives up to the letter and spirit of republican- ism, while he maintains all the dignity due to his age and office. ' His house is small, and more humble in appear- ance than those of the average of successful lawyers or merchants. I called three times upon him ; there is no bell to the door : once I turned the handle of it, and walked in unannounced; on the other two occa- sions he had seen me coming, and had lifted the latch and received me at the door, although he was at the time suffering from some severe contusions received in the stage while travelling on that road from Frede- ricksburgh to Richmond, which I have before de- scribed. I verily believe there is not a particle of vanity in his composition, unless it be of that venial and hospitable nature which induces him to pride him- 266 LIFE OF JOHN MARSHALL. self on giving to his friends the best glass of Madeira in Virginia. In short, blending, as he does, the sim- plicity of a child and the plainness of a republican with the learning and ability of a lawyer, the venera- ble dignity of his appearance would not suffer in com- parison with that of the most respected and distin- guished-looking peer in the British House of Lords.' * This absence of vanity, this childlike simplicity, this unpretending manner, that distinguished Mar- shall, and which every one remarked, often induced a feeling of disappointment on a first introduction to him. He used no tricks ' to maintain the credit of his sufficiency ;" and never talked to display his know- ledge or ability, or 'to get opinion,' as Bacon expresses it. There was an utter unconsciousness of self in his manner; all was simple, natural, and unaffected. He presumed nothing upon his age or station, and his ordinary conversation, though agreeable, sensible, and suitable to the occasion, did not betoken the depth of his mind. It was only in the company of his intimate friends, and when the conversation was directed to some subject that elicited discussion, that the powers of his mind were displayed. The following anecdote may be cited as an example : — * Mr. Dexter,' says Judge Story, ' was once in com- pany with Fisher Ames and Chief Justice Marshall. The latter commenced a conversation, or rather an opinion (for he was almost solus in the dialogue), which lasted some three hours. On breaking up, the ' Travels in North America, by the Honorable Charles Augustus Murray, vol. i., p. 158. Murray, by the bye, was a grandson of Lord Dunmore CONCLUSION. 267 two former commenced, on their way homeward, praising the depth and learning of their noble host. Said Ames, after a short talk, " to confess the truth, Dexter, I have not understood a word of his argument for half an hour." "And I," good-humoredly rejoined Dexter, *' have been out of my depth for an hour and a half."'^ The Chief Justice fearing the effects of age upon his mind, and anxious that, ' in life's last scenes,' he might not exhibit another instance of the ' follies of the wise,' had charged his confidential friends to let him know whenever they perceived the slightest abate- ment in his intellectual vigor, and he would at once retire from the Bench. But they never had occasion to perform that delicate office. His intellect remained unclouded and undimmed to the last moment. At the session of the Supreme Court, however, in the winter of 1835, it was apparent that his health was rapidly declining. His complaints were very much aggra- vated by the injuries received while travelling in the stage between Fredericksburgh and Richmond, on his return home at the close of the term. He suffered great pain through the spring ; but, early in June, ex- perienced a delusive interval of convalescence. It did not last long, and, at the earnest solicitation of friends, he revisited Philadelphia to seek that relief which the medical skill of that city had formerly afforded him. He was accompanied by three of his sons,^ and through- ' Story's Life and Letters, vol. ii., p. 404. ' His eldest son, Mr. Thomas Marshall, who was ' highly esteemed for his talents, his many virtues, and his exemplary and useful life,' was killed at Baltimore by the fall of a chimney, while on his way tc attend the death-bed of his father. He died June 28th. This melan- choly calamity was considerately concealed from the dying parent. 268 LIFE OF JOHN MARSHALL. out his illness had every consolation from filial atten tion, and from the kindness and attention of his nume- rous friends at Philadelphia, who manifested the deepest interest in his situation, and did all in their power to alleviate it. But it was evident, from the moment of his arrival in the city, that the sands of his life had nearly run out. The cause of his death was a very diseased condition of the liver, which was enormously enlarged, and contained several tuberculous abscesses of great size ; its pressure upon the stomach had the effect of dislodging this organ from its natural situa- tion, and compressing it in such a manner, that, for some time previous to his death, it would not retain the smallest quantity of nutriment.^ He was conscious of his approaching end, and viewed it with perfect composure. Two days before his death, and in full view of it, with a modesty characteristic of himself, he wrote the following inscription for his monumental tablet : — ' John Marshall, son of Thomas and Mary Marshall, was born on the 24th of September, 1755, intermarried with Mary Willis Ambler the 3d of January, 1783, departed this life the day of , 18—.' He expired without a struggle, on Monday, the 6th of July, 1835, about six o'clock in the evening. The news of his death elicited everywhere manifestations of sorrow and respect. The citizens of Philadelphia assembled in town meeting to express their senti- ments on the occasion. The venerable Bishop White, then in the 88th year of his age, presided. Suitable resolutions were adopted, and the whole proceedings evinced the respect and reverence with which his character was regarded. • Randolph's Memoir of Dr. Physick, p. 101. CONCLUSION. 269 His remains were conveyed to Richmond, accompa- nied by a committee of the Philadelphia Bar. On their arrival at that place they were met by an im- posing procession composed of the military, the Ma- sonic brethren, the civil authorities, and citizens, and escorted to his residence, where the funeral service was performed by the Right Reverend Bishop Moore, in a most fervent and feeling manner. He was buried near the ashes of his wife, in what was called the New Burying - ground. His statue, representing Justice, occupies one of the six pedestals that sur- round the main column of the Washington Monu- ment erected in the Capitol square at Richmond. Certainly nothing could be more appropriate. Judge Marshall was a sincere friend to religion, and a constant attendant upon its ministrations. Brought up in the Episcopal Church, he adhered to it through life, though not until a short time before his death a believer in its fundamental doctrines. * I often visited,' says the Rev, Mr. Norwood, * Mrs. General Harvey during her last sickness. From her I received this statement. She was much with her father [Judge Marshall] during the last months of his life, and told me that the reason why he never com- muned was, that he was a Unitarian in opinion, though he never joined their society. He told her that he believed in the truth of the Christian revela- tion, but not in the divinity of Christ ; therefore he could not commune in the Episcopal Church. But, during the last months of his life, he read Keith on Prophecy, where our Saviour' s divinity is inci- dentally treated, and was convinced by his work, and the fuller investigation to which it led, of the supreme 270 LIFE OF JOHN MARSHALL. divinity of the Saviour, He determined to apply for admission to the communion of our Church — objected to communion in private, because he thought it his duty to make a public confession of the Saviour; and, while waiting for improved health to enable him to go to the Church for that purpose, he grew worse, and died, without ever communing. Mrs. Harvey was a lady of the strictest probity, the most humble piety, and of a clear, discriminating mind ; and her state- ment, the substance of which I give you accurately (having reduced it to writing), may be entirely re- lied on. I remember to have heard Bishop Moore repeat- edly express his surprise (when speaking of Judge Marshall), that, though he was so punctual in his attendance at church, and reproved Mr. , and Mr. , and Mr. , when they were absent, and knelt during the prayers and responded fervently, yet he never communed. The reason was that he gave to his daughter, Mrs. Harvey. She said he died an humble, penitent believer in Christ, according to the orthodox creed of the Church. . . . ' P. S. — Another fact, illustrating the lasting influ- ence of maternal instruction, was mentioned by Mrs. Harvey. Her father told her that he never went to bed without concluding his prayers with those which his mother taught him when a child, viz., the Lord's Prayer, and the prayer beginning, " Now I lay me down to sleep." ' * I can never forget,' says Bishop Meade, ' how he would prostrate his tall form before the rude low ' Old Churches aud Families of Virginia, vol. ii., p. 223, note. Letter from Rev. William Norwood to Bishop Meade. CONCLUSION. 271 benches without backs, at Cool Spring Meeting-house, in the midst of his children, and grandchildren, and his old neighbors. In Richmond he always set an ex- ample to the gentlemen of the same conformity, though many of them did not follow it. At the building of the Monumental Church he was much incommoded by the narrowness of the pews, which partook too much, of the modern fashion. Not finding room for his whole body within the pew, he used to take his seat nearest the door of his pew, and throwing it open, let his legs stretch a little into the aisle.' * He not only conformed to the ceremonies of religion, but his whole life evinced virtuous principles and affec- tions. * He had no frays in his boyhood. He had no quarrels or outbreakings in manhood. He was the composer of strifes. He spoke ill of no man. He meddled not with their affairs. He viewed their worst deeds through the medium of charity. He had eight sisters and six brothers, with all of whom, from youth to age, his intercourse was marked by the utmost kind- ness and affection ; and although his eminent talents, high public character, and acknowledged usefulness, could not fail to be a subject of pride and admiration to all of them, there is no one of his numerous rela- tions, who has had the happiness of a personal associa- tion with him, in whom his purity, simplicity, and affectionate benevolence, did not produce a deeper and more cherished impression, than all the achievements of his powerful intellect.' ' In private life he was up- right, and scrupulously just in all his transactions. His friendships were ardent, sincere, and constant — his charity and benevolence unbounded. He was fond ■ Old Churches and Families of Virgiuia, vol. ii., p. 221, note. 272 LIFE OF JOHN MARSHALL. of society, and, in the social circle, cheerful and unas- suming. He participated freely in conversation, but, from modesty, rather followed than led. Magnani- mous and forgiving, he never bore malice, of which illustrious instances might be given. A republican from feeling and judgment, he loved equality, abhorred all distinctions founded upon rank instead of merit, and had no preference for the rich over the poor. Re- ligious from sentiment and reflection, he was a Chris- tian, believed in the Gospel, and practised its tenets.' * ' The testimony of a kinsman and of a friend. Vide, Biuuej'a Eulogy on John Marshall, p. 68. INDEX. Adams, John, 77, 106, 117, 120, 122, 125, 129, 130, 159. Adams, Col., 132. Ambler, Jacqueline, 44, 238. Ambler, Mary Willis, 44, 238, 268. Ames, Fisher, 73, 112, 266, 267. Arnold, Benedict, 22. Baker, John, 31, 148. Ball, Col., 19. Barbour, P. P., 224. Barlow, Joel, 201. Barthelimie, Wm. Abbe, 211. Beaumarchais, M. , 87. Bellamy, M., 80-104. Binney, Horace, 134, 136, 194. Blair, Archibald, 109. Blair, J. D., 240. Blennerhassett, Hermann, 147, 148, 154. Bollman, Eric, 144-147. Botts, Benjamin, 148. Bradford, William, 73. Brown v. Maryland, 184. Buchanan, J., 240. Burgoyne, John, 259, 261. Burr, Aaron, 20, 127, 136, 141-149, 154, 155. Butler, Benjamin F., 195. Butler, Rev. Mr., 182. Cabot, George, 73, 103. Call, Daniel, 239. Campbell, Alexander, 30, 32, 33. 273 274 INDEX. Campbell, Rev. Mr., 5. Carr, Dabney, 179. Carrington, Mrs. Edward, 258. Chesterfield, Lord, 171. Chevallie, John A., 87. Chisholm v. Georgia, 66. Clay, Henry, 195. Clinton, Sir Henry, 21. Clymer, George, 44, Cohens v. Virginia, 175. Cornwallis, Lord, 22. Craig V. Missouri, 186. Cushing, William, 130. Dallas, Alexander J., 156. Dana, Francis, 76. Dartmouth College, The Case of, 166. Dexter, Samuel, 73, 125, 135, 266, 267. Dunmore, Lord, 9, 13, 14, 15. Duponceau, Peter S., 136. Dutrimond, M., 91. Eldon, Lord, 135. Eramett, Thomas Addis, 136, 156, 173. "Ex parte Swartwout and Bollman, 149, 150. Fisher, George, 239. Fletcher v. Peck, 162. Fordyce, Capt., 15. Fox, Charles James, 134. Fulton, Robert, 178. Gallatin, Albert, 119. Gerry, Elbridge, 77-1 )4 Gibbon, Edward, 211. Gibbons v. Ogden, 139, 178. Giles, William B., 154, 223. Gilmer, Francis W., 32, Grayson, William, 50, 69. Griffin, Judge, 30. INDEX. 275 Hamilton, Alexander, 20, 33, 73, 127, 142. Harper, Robert G., 136, 137. Harvey, Mrs., 269, 270. Hautville, M., 84-104. Hay, George, 148. Henry, Patrick, 30-32, 50, 52, 54, 59, 62, 68, 109, 110. Hoffman, Josiah Ogden, 136, 156. Holmes, 166. Hopkinson, Francis, 136, 166, 172. Hottinguer, M., 78-104. Howe, Sir William, 21. Hume, David, 132, 211, 247. Huntington, The Countess, 31, 32. Ingersoll, Jared, 136. Innes, James, 31, 50. Iredell, Judge, 30, 31, 32. Jackson, Andrew, 254. Jackson, William, 209, 210, 212. Jay, John, 30, 130, 219. Jefferson, Thomas, 54, 103, 104, 127, 128, 136, 142, 159, 160, 201, 218, 219, 230. Johnson, Capt., 18. Johnson v. MTntosh, 176. Johnson, Dr. Samuel, 113, 132. Jones, Hugh, 24. Jones, Walter, 172. Keith, Mary, 3, 4. Kemble, Miss Fanny, 261. Kent, James, 136. King, Rufus, 73, 126,251 Lee, Charles, 122, 124, 148. Lee, Henry, 21, 112, 116. Lee, Richard Henry, 69. Leigh, B. Walkins, 136, 224, 235. Leslie, General, 21, 22. Lewis, William, 33. 276 INDEX. Liancourt, Duke de, 38, 39, 40. Livingston, Brockholst, 103. Livingston, Robt. R. , 178. Madison, James, 50, 68, 103, 159, 201, 222, 223, 263. Madison, Bishop, 23. Mansfield, Lord, 135. Marbury v. Madison, 159. Markham, Elizabeth, 1. Marshall, John, Sr., 1. Marshall, Mrs. J., 44, 238, 258. Marshall, Thomas, 1-4, 6, 8, 10, 12, 15, 258, 267. Martineau, Miss, 195, 262. Martin, Luther, 136, 148, 172. Mason, George, 46, 50, 65, 68. Mayo, 121. Mazzei, Philip, 218. McCulloch V. Maryland, 171. Meade, Bishop, 243, 258, 270. M'Henry, J., 122, 123, 124, 125, 128. Monroe, James, 1, 6, 55, 74, 222, 223. Moore, Bishop, 269, 270. Mountflorenoe, 78. M' Rae, Alexander, 148. Napoleon, 143. Nereide, The, 156, 158. Newton, Isaac, 265. Nicholas, 137. Nicholas, George, 50. Nicholas, William, 50. Norwood, William, 269. Oakly, Chief Justice, 136, 179. Ogden, David B., 136. Ogden V. Saunders, 140. Osborn v. U. S. Bank, 182. Parker, Joel, 136. Patterson, William, 130. INDEX. 277 Peters, Richard, 256. Phillips, 53, 54. Physick, Dr. P. S., 255. Pickering, Timothy, 101, 122, 124, 125. Pinckney, C. C, 76, 78-104. Pinkney, WilUam, 136, 137, 156, 157, 172. Pinto, Manuel, 156, 158. Porterfield, Charles, 18. Porterfield, Robert, 18. Randolph, Edmund, 46, 50, 53, 54, 148, Randolph, J., 13, 224, 229, 232. Randolph, Dr. J., 256. Rawle, William, 136. Robbins, Jonathan, 117-120. Ronald, Andrew, 31. Rose V. Himely, 156. Rutledge, John, 44. Scott, John, see Eldon. Sergeant, John, 136, 189. Sedgwick, Theo., 73. Short, William, 205. Slaughter, Philip, 18. Starke, 31. Steuben, Baron, 21. Stevens, Edward, 12. Stoddert, Benjamin, 122, 123. Story, Joseph, 2, 20, 46, 131, 132, 134, 137, 182, 193, 194, 251, 252, 255, 257, 261, 262, 263. Swartwout, Samuel, 144, 145, 146. Taliafero, Lawrence, 12. Talleyrand, M., 77-104. Taylor, 122. Tazewell, Littleton W., 224. The Cherokee Nation v. Georgia, 187. Thompson, Rev. Mr., 6. Tilghman, E., 136. 278 INDEX. Van Buren, M., 218. Wadsworth, Gen. J., 73. Ware v. Hylton, 30. Washington, Bushrod, 106-108, 168, 197-206. Washington, George, 1, 4, 16-18, 70, 71, 74, 75, 107-112, 115-117, 122, 133, 197, 209, 219, 238, 257. Wayne, Anthony, 21. Wayne, Caleb P., 197, 203, 204, 205, 208, 214. Webster, D., 132, 135, 166-169, 172, 179, 180, 195. Weems, Mason L., 202. Wells, 136. White, Bishop, 268. Wickham, John, 31, 137, 148. Wilkinson, Gen. J., 144, 146. Willis, Capt., 77. Wilson, James, 106. Wirt, William, 27, 29, 32, 137, 148, 166, 169, 172, 179, 189. Wolcott, Oliver, 103, 112, 113, 122, 123, 124, 125, 128. Woodford, Colonel, 14. Worcester, Samuel A., 130, 191. Wythe, George, 23, 72. »44.^«lj| "liL. ■Jliiiii LIBRARY OF CONGRESS 011 769 514 1