THE MAN AND THE LAWYER
Tall, meagre, emaciated, his muscles relaxed, his joints loosely connected, his head small, his complexion swarthy, his countenance expressing great good humor and hilarity. (William Wirt.)
Mr. Marshall can hardly be regarded as a learned lawyer. (Gustavus Schmidt.)
His head is one of the best organized of any I have known. (Rufus King.)
On a pleasant summer morning when the cherries were ripe, a tall, ungainly man in early middle life sauntered along a Richmond street. His long legs were encased in knee breeches, stockings, and shoes of the period; and about his gaunt, bony frame hung a roundabout or short linen jacket. Plainly, he had paid little attention to his attire. He was bareheaded and his unkempt hair was tied behind in a queue. He carried his hat under his arm, and it was full of cherries which the owner was eating as he sauntered idly along.[456] Mr. Epps's hotel (The Eagle) faced the street along which this negligently appareled person was making his leisurely way. He greeted the landlord as he approached, cracked a joke in passing, and rambled on in his unhurried walk.
At the inn was an old gentleman from the country who had come to Richmond where a lawsuit, to which he was a party, was to be tried. The venerable litigant had a hundred dollars to pay to the lawyer who should conduct the case, a very large fee for those days. Who was the best lawyer in Richmond, asked he of his host? "The man who just passed us, John Marshall by name," said the tavern-keeper. But the countryman would have none of Marshall. His appearance did not fill the old man's idea of a practitioner before the courts. He wanted, for his hundred dollars, a lawyer who looked like a lawyer. He would go to the court-room itself and there ask for further recommendation. But again he was told by the clerk of the court to retain Marshall, who, meanwhile, had ambled into the court-room.
But no! This searcher for a legal champion would use his own judgment. Soon a venerable, dignified person, solemn of face, with black coat and powdered wig, entered the room. At once the planter retained him. The client remained in the court-room, it appears, to listen to the lawyers in the other cases that were ahead of his own. Thus he heard the pompous advocate whom he had chosen; and then, in astonishment, listened to Marshall.
The attorney of impressive appearance turned out to be so inferior to the eccentric-looking advocate that the planter went to Marshall, frankly told him the circumstances, and apologized. Explaining that he had but five dollars left, the troubled old farmer asked Marshall whether he would conduct his case for that amount. With a kindly jest about the power of a black coat and a powdered wig, Marshall good-naturedly accepted.[457]
This not too highly colored story is justified by all reports of Marshall that have come down to us. It is some such picture that we must keep before us as we follow this astonishing man in the henceforth easy and giant, albeit accidental, strides of his great career. John Marshall, after he had become the leading lawyer of Virginia, and, indeed, throughout his life, was the simple, unaffected man whom the tale describes. Perhaps consciousness of his own strength contributed to his disregard of personal appearance and contempt for studied manners. For Marshall knew that he carried heavier guns than other men. "No one," says Story, who knew him long and intimately, "ever possessed a more entire sense of his own extraordinary talents ... than he."[458]
Marshall's most careful contemporary observer, William Wirt, tells us that Marshall was "in his person, tall, meagre, emaciated; his muscles relaxed and his joints so loosely connected, as not only to disqualify him, apparently, for any vigorous exertion of body, but to destroy everything like elegance and harmony in his air and movements.
"Indeed, in his whole appearance, and demeanour; dress, attitudes, gesture; sitting, standing, or walking; he is as far removed from the idolized graces of lord Chesterfield, as any other gentleman on earth.
"To continue the portrait; his head and face are small in proportion to his height; his complexion swarthy; the muscles of his face being relaxed; ... his countenance has a faithful expression of great good humour and hilarity; while his black eyes—that unerring index—possess an irradiating spirit which proclaims the imperial powers of the mind that sits enthroned within....
"His voice is dry, and hard; his attitude, in his most effective orations, often extremely awkward; as it was not unusual for him to stand with his left foot in advance, while all his gesture proceeded from his right arm, and consisted merely in a vehement, perpendicular swing of it from about the elevation of his head to the bar, behind which he was accustomed to stand."[459]
During all the years of clamorous happenings, from the great Virginia Convention of 1788 down to the beginning of Adams's Administration and in the midst of his own active part in the strenuous politics of the time, Marshall practiced his profession, although intermittently. However, during the critical three weeks of plot and plan, debate and oratory in the famous month of June, 1788, he managed to do some "law business": while Virginia's Constitutional Convention was in session, he received twenty fees, most of them of one and two pounds and the largest from "Colọ W. Miles Cary 6.4." He drew a deed for his fellow member of the Convention, James Madison, while the Convention was in session, for which he charged his colleague one pound and four shillings.
But there was no time for card-playing during this notable month and no whist or backgammon entries appear in Marshall's Account Book. Earlier in the year we find such social expenses as "Card table 5.10 Cards 8/ paper 2/-6" and "expenses and loss at billiards at dift times 3" (pounds). In September, 1788, occurs the first entry for professional literature, "Law books 20/-1"; but a more important book purchase was that of "Mazai's book sur les etats unis[460] 18" (shillings), an entry which shows that some of Marshall's family could read French.[461]
Marshall's law practice during this pivotal year was fairly profitable. He thus sums up his earnings and outlay, "Recḍ in the year 1788 1169.05; and expended in year 1788, 515-13-7" which left Marshall more than 653 pounds or about $1960 Virginia currency clear profit for the year.[462]
The following year (1789) he did a little better, his net profit being a trifle over seven hundred pounds, or about $2130 Virginia currency. In 1790 he earned a few shillings more than 1427 pounds and had about $2400 Virginia currency remaining, after paying all expenses. In 1791 he did not do so well, yet he cleared over $2200 Virginia currency. In 1792 his earnings fell off a good deal, yet he earned more than he expended, over 402 pounds (a little more than $1200 Virginia currency).
In 1793 Marshall was slightly more successful, but his expenses also increased, and he ended this year with a trifle less than 400 pounds clear profit. He makes no summary in 1794, but his Account Book shows that he no more than held his own. This business barometer does not register beyond the end of 1795,[463] and there is no further evidence than the general understanding current in Richmond as to the amount of his earnings after this date. La Rochefoucauld reported in 1797 that "Mr. Marshall does not, from his practice, derive above four or five thousand dollars per annum and not even that sum every year."[464] We may take this as a trustworthy estimate of Marshall's income; for the noble French traveler and student was thorough in his inquiries and took great pains to verify his statements.
In 1789 Marshall bought the tract of land amounting to an entire city "square" of two acres,[465] on which, four years later, he built the comfortable brick residence where he lived, while in Richmond, during the remainder of his life. This house still stands (1916) and is in excellent repair. It contains nine rooms, most of them commodious, and one of them of generous dimensions where Marshall gave the "lawyer dinners" which, later, became so celebrated. This structure was one of a number of the important houses of Richmond.[466] Near by were the residences of Colonel Edward Carrington, Daniel Call, an excellent lawyer, and George Fisher, a wealthy merchant; these men had married the three sisters of Marshall's wife. The house of Jacquelin Ambler was also one of this cluster of dwellings. So that Marshall was in daily association with four men to whom he was related by marriage, a not negligible circumstance; for every one of them was a strong and successful man, and all of them were, like Marshall, pronounced Federalists. Their views and tastes were the same, they mutually aided and supported one another; and Marshall was, of course, the favorite of this unusual family group.
In the same locality lived the Leighs, Wickhams, Ronalds, and others, who, with those just mentioned, formed the intellectual and social aristocracy of the little city.[467] Richmond grew rapidly during the first two decades that Marshall lived there. From the village of a few hundred people abiding in small wooden houses, in 1783, the Capital became, in 1795, a vigorous town of six thousand inhabitants, dwelling mostly in attractive brick residences.[468] This architectural transformation was occasioned by a fire which, in 1787, destroyed most of the buildings in Richmond.[469] Business kept pace with the growth of the city, wealth gradually and healthfully accumulated, and the comforts of life appeared. Marshall steadily wove his activities into those of the developing Virginia metropolis and his prosperity increased in moderate and normal fashion.
JOHN MARSHALL'S HOUSE, RICHMOND
In his personal business affairs Marshall showed a childlike faith in human nature which sometimes worked to his disadvantage. For instance, in 1790 he bought a considerable tract of land in Buckingham County, which was heavily encumbered by a deed of trust to secure "a debt of a former owner" of the land to Caron de Beaumarchais.[470] Marshall knew of this mortgage "at the time of the purchase, but he felt no concern ... because" the seller verbally "promised to pay the debt and relieve the land from the incumbrance."
So he made the payments through a series of years, in spite of the fact that Beaumarchais's mortgage remained unsatisfied, that Marshall urged its discharge, and, finally, that disputes concerning it arose. Perhaps the fact that he was the attorney of the Frenchman in important litigation quieted apprehension. Beaumarchais having died, his agent, unable to collect the debt, was about to sell the land under the trust deed, unless Marshall would pay the obligation it secured. Thus, thirteen years after this improvident transaction, Marshall was forced to take the absurd tangle into a court of equity.[471]
But he was as careful of matters entrusted to him by others as this land transaction would suggest that he was negligent of his own affairs. Especially was he in demand, it would seem, when an enterprise was to be launched which required public confidence for its success. For instance, the subscribers to a fire insurance company appointed him on the committee to examine the proposed plan of business and to petition the Legislature for a charter,[472] which was granted under the name of the "Mutual Assurance Society of Virginia."[473] Thus Marshall was a founder of one of the oldest American fire insurance companies.[474] Again, when in 1792 the "Bank of Virginia," a State institution, was organized,[475] Marshall was named as one of the committee to receive and approve subscriptions for stock.[476]
No man could have been more watchful than was Marshall of the welfare of members of his family. At one of the most troubled moments of his life, when greatly distressed by combined business and political complications,[477] he notes a love affair of his sister and, unasked, carefully reviews the eligibility of her suitor. Writing to his brother James on business and politics, he says:—
"I understand that my sister Jane, while here [Richmond], was addressed by Major Taylor and that his addresses were encouraged by her. I am not by any means certain of the fact nor did I suspect it until we had separated the night preceding her departure and consequently I could have no conversation with her concerning it.
"I believe that tho' Major Taylor was attach'd to her, it would probably have had no serious result if Jane had not manifested some partiality for him. This affair embarrasses me a good deal. Major Taylor is a young gentleman of talents and integrity for whom I profess and feel a real friendship. There is no person with whom I should be better pleased if there were not other considerations which ought not to be overlook'd. Mr. Taylor possesses but little if any fortune, he is encumbered with a family, and does not like his profession. Of course he will be as eminent in his profession as his talents entitle him to be. These are facts unknown to my sister but which ought to be known to her.
"Had I conjectured that Mr. Taylor was contemplated in the character of a lover I shou'd certainly have made to her all proper communications. I regret that it was concealed from me. I have a sincere and real affection and esteem for Major Taylor but I think it right in affairs of this sort that the real situation of the parties should be mutually understood. Present me affectionately to my sister."[478]
From the beginning of his residence in Richmond, Marshall had been an active member of the Masonic Order. He had become a Free Mason while in the Revolutionary army,[479] which abounded in camp lodges. It was due to his efforts as City Recorder of Richmond that a lottery was successfully conducted to raise funds for the building of a Masonic hall in the State Capital in 1785.[480] The following year Marshall was appointed Deputy Grand Master. In 1792 he presided over the Grand Lodge as Grand Master pro tempore; and the next year he was chosen as the head of the order in Virginia. He was reëlected as Grand Master in 1794; and presided over the meetings of the Grand Lodge held during 1793 until 1795 inclusive. During the latter year the Masonic hall in Manchester was begun and he assisted in the ceremonies attending the laying of the corner-stone, which bore this inscription: "This stone was laid by the Worshipful Archibald Campbell, Master of the Manchester Lodge of free & accepted Masons Assisted by & in the presence of the Most Worshipful John Marshall Grand Master of Masons to Virginia."[481]
Upon the expiration of his second term in this office, the Grand Lodge "Resolved, that the Grand Lodge are truly sensible of the great attention of our late Grand Master, John Marshall, to the duties of Masonry, and that they entertain an high sense of the wisdom displayed by him in the discharge of the duties of his office; and as a token of their entire approbation of his conduct do direct the Grand Treasurer to procure and present him with an elegant Past Master's jewel."[482]
From 1790 until his election to Congress, nine years later,[483] Marshall argued one hundred and thirteen cases decided by the Court of Appeals of Virginia. Notwithstanding his almost continuous political activity, he appeared, during this time, in practically every important cause heard and determined by the supreme tribunal of the State. Whenever there was more than one attorney for the client who retained Marshall, the latter almost invariably was reserved to make the closing argument. His absorbing mind took in everything said or suggested by counsel who preceded him; and his logic easily marshaled the strongest arguments to support his position and crushed or threw aside as unimportant those advanced against him.
Marshall preferred to close rather than open an argument. He wished to hear all that other counsel might have to say before he spoke himself; for, as has appeared, he was but slightly equipped with legal learning[484] and he informed himself from the knowledge displayed by his adversaries. Even after he had become Chief Justice of the Supreme Court of the United States and throughout his long and epochal occupancy of that high place, Marshall showed this same peculiarity which was so prominent in his practice at the bar.
Every contemporary student of Marshall's method and equipment notes the meagerness of his learning in the law. "Everyone has heard of the gigantick abilities of John Marshall; as a most able and profound reasoner he deserves all the praise which has been lavished upon him," writes Francis Walker Gilmer, in his keen and brilliant contemporary analysis of Marshall. "His mind is not very richly stored with knowledge," he continues, "but it is so creative, so well organized by nature, or disciplined by early education, and constant habits of systematick thinking, that he embraces every subject with the clearness and facility of one prepared by previous study to comprehend and explain it."[485]
Gustavus Schmidt, who was a competent critic of legal attainments and whose study of Marshall as a lawyer was painstaking and thorough, bears witness to Marshall's scanty acquirements. "Mr. Marshall," says Schmidt, "can hardly be regarded as a learned lawyer.... His acquaintance with the Roman jurisprudence as well as with the laws of foreign countries was not very extensive. He was what is called a common law lawyer in the best & noblest acceptation of that term."
Mr. Schmidt attempts to excuse Marshall's want of those legal weapons which knowledge of the books supply.
"He was educated for the bar," writes Schmidt, "at a period when digests, abridgments & all the numerous facilities, which now smooth the path of the law student were almost unknown & when you often sought in vain in the Reporters which usually wore the imposing form of folios, even for an index of the decisions & when marginal notes of the points determined in a case was a luxury not to be either looked for or expected.
"At this period when the principles of the Common Law had to be studied in the black-letter pages of Coke upon Littleton, a work equally remarkable for quaintness of expression, profundity of research and the absence of all method in the arrangements of its very valuable materials; when the rules of pleading had to be looked for in Chief Justice Saunders's Reports, while the doctrinal parts of the jurisprudence, based almost exclusively on the precedents had to be sought after in the reports of Dyer, Plowden, Coke, Popham ... it was ... no easy task to become an able lawyer & it required no common share of industry and perseverance to amass sufficient knowledge of the law to make even a decent appearance in the forum."[486]
It would not be strange, therefore, if Marshall did cite very few authorities in the scores of cases argued by him. But it seems certain that he would not have relied upon the "learning of the law" in any event; for at a later period, when precedents were more abundant and accessible, he still ignored them. Even in these early years other counsel exhibited the results of much research; but not so Marshall. In most of his arguments, as reported in volumes one, two, and four of Call's Virginia Reports and in volumes one and two of Washington's Virginia Reports,[487] he depended on no authority whatever. Frequently when the arguments of his associates and of opposing counsel show that they had explored the whole field of legal learning on the subject in hand, Marshall referred to no precedent.[488] The strongest feature of his argument was his statement of the case.
The multitude of cases which Marshall argued before the General Court of Appeals and before the High Court of Chancery at Richmond covered every possible subject of litigation at that time. He lost almost as frequently as he won. Out of one hundred and twenty-one cases reported, Marshall was on the winning side sixty-two times and on the losing side fifty times. In two cases he was partly successful and partly unsuccessful, and in seven it is impossible to tell from the reports what the outcome was.
Once Marshall appeared for clients whose cause was so weak that the court decided against him on his own argument, refusing to hear opposing counsel.[489] He was extremely frank and honest with the court, and on one occasion went so far as to say that the opposing counsel was in the right and himself in the wrong.[490] "My own opinion," he admitted to the court in this case, "is that the law is correctly stated by Mr. Ronald [the opposing counsel], but the point has been otherwise determined in the General Court." Marshall, of course, lost.[491]
Nearly all the cases in which Marshall was engaged concerned property rights. Only three or four of the controversies in which he took part involved criminal law. A considerable part of the litigation in which he was employed was intricate and involved; and in this class of cases his lucid and orderly mind made him the intellectual master of the contending lawyers. Marshall's ability to extract from the confusion of the most involved question its vital elements and to state those elements in simple terms was helpful to the court, and frankly appreciated by the judges.
Few letters of Marshall to his fellow lawyers written during this period are extant. Most of these are very brief and confined strictly to the particular cases which he had been retained by his associate attorneys throughout Virginia to conduct before the Court of Appeals. Occasionally, however, his humor breaks forth.
"I cannot appear for Donaghoe," writes Marshall to a country member of the bar who lived in the Valley over the mountains. "I do not decline his business from any objection to his bank. To that I should like very well to have free access & wou'd certainly discount from it as largely as he wou'd permit, but I am already fixed by Rankin & as those who are once in the bank do not I am told readily get out again I despair of being ever able to touch the guineas of Donaghoe.
"Shall we never see you again in Richmond? I was very much rejoiced when I heard that you were happily married but if that amounts to a ne exeat which is to confine you entirely to your side of the mountain, I shall be selfish enough to regret your good fortune & almost wish you had found some little crooked rib among the fish and oysters which would once a year drag you into this part of our terraqueous globe.
"You have forgotten I believe the solemn compact we made to take a journey to Philadelphia together this winter and superintend for a while the proceedings of Congress."[492]
Again, writing to Stuart concerning a libel suit, Marshall says: "Whether the truth of the libel may be justified or not is a perfectly unsettled question. If in that respect the law here varies from the law of England it must be because such is the will of their Honors for I know of no legislative act to vary it. It will however be right to appeal was it only to secure a compromise."[493]
Marshall's sociableness and love of play made him the leader of the Barbecue Club, consisting of thirty of the most agreeable of the prominent men in Richmond. Membership in this club was eagerly sought and difficult to secure, two negatives being sufficient to reject a candidate. Meetings were held each Saturday, in pleasant weather, at "the springs" on the farm of Mr. Buchanan, the Episcopal clergyman. There a generous meal was served and games played, quoits being the favorite sport. One such occasion of which there is a trustworthy account shows the humor, the wit, and the good-fellowship of Marshall.
He welcomed the invited guests, Messrs. Blair and Buchanan, the famous "Two Parsons" of Richmond, and then announced that a fine of a basket of champagne, imposed on two members for talking politics at a previous meeting of the club, had been paid and that the wine was at hand. It was drunk from tumblers and the Presbyterian minister joked about the danger of those who "drank from tumblers on the table becoming tumblers under the table." Marshall challenged "Parson" Blair to a game of quoits, each selecting four partners. His quoits were big, rough, heavy iron affairs that nobody else could throw, those of the other players being smaller and of polished brass. Marshall rang the meg and Blair threw his quoit directly over that of his opponent. Loud were the cries of applause and a great controversy arose as to which player had won. The decision was left to the club with the understanding that when the question was determined they should "crack another bottle of champagne."
Marshall argued his own case with great solemnity and elaboration. The one first ringing the meg must be deemed the winner, unless his adversary knocked off the first quoit and put his own in its place. This required perfection, which Blair did not possess. Blair claimed to have won by being on top of Marshall; but suppose he tried to reach heaven "by riding on my back," asked Marshall. "I fear that from my many backslidings and deficiencies, he may be badly disappointed." Blair's method was like playing leap frog, said he. And did anybody play backgammon in that way? Also there was the ancient legal maxim, "Cujus est solum, ejus est usque ad cœlum": being "the first occupant his right extended from the ground up to the vault of heaven and no one had a right to become a squatter on his back." If Blair had any claim "he must obtain a writ of ejectment or drive him [Marshall] from his position vi et armis." Marshall then cited the boys' game of marbles and, by analogy, proved that he had won and should be given the verdict of the club.
Wickham argued at length that the judgment of the club should be that "where two adversary quoits are on the same meg, neither is victorious." Marshall's quoit was so big and heavy that no ordinary quoit could move it and "no rule requires an impossibility." As to Marshall's insinuation that Blair was trying to reach "Elysium by mounting on his back," it was plain to the club that such was not the parson's intention, but that he meant only to get a more elevated view of earthly things. Also Blair, by "riding on that pinnacle," will be apt to arrive in time at the upper round of the ladder of fame. The legal maxim cited by Marshall was really against his claim, since the ground belonged to Mr. Buchanan and Marshall was as much of a "squatter" as Blair was. "The first squatter was no better than the second." And why did Marshall talk of ejecting him by force of arms? Everybody knew that "parsons are men of peace and do not vanquish their antagonists vi et armis. We do not deserve to prolong this riding on Mr. Marshall's back; he is too much of a Rosinante to make the ride agreeable." The club declined to consider seriously Marshall's comparison of the manly game of quoits with the boys' game of marbles, for had not one of the clergymen present preached a sermon on "marvel not"? There was no analogy to quoits in Marshall's citation of leap frog nor of backgammon; and Wickham closed, amid the cheers of the club, by pointing out the difference between quoits and leap frog.
The club voted with impressive gravity, taking care to make the vote as even as possible and finally determined that the disputed throw was a draw. The game was resumed and Marshall won.[494]
Such were Marshall's diversions when an attorney at Richmond. His "lawyer dinners" at his house,[495] his card playing at Farmicola's tavern, his quoit-throwing and pleasant foolery at the Barbecue Club, and other similar amusements which served to take his mind from the grave problems on which, at other times, it was constantly working, were continued, as we shall see, and with increasing zest, after he became the world's leading jurist-statesman of his time. But neither as lawyer nor judge did these wholesome frivolities interfere with his serious work.
Marshall's first case of nation-wide interest, in which his argument gave him fame among lawyers throughout the country, was the historic controversy over the British debts. When Congress enacted the Judiciary Law of 1789 and the National Courts were established, British creditors at once began action to recover their long overdue debts. During the Revolution, other States as well as Virginia had passed laws confiscating the debts which their citizens owed British subjects and sequestering British property.
Under these laws, debtors could cancel their obligations in several ways. The Treaty of Peace between the United States and Great Britain provided, among other things, that "It is agreed that creditors on either side shall meet with no legal impediments to the recovery of the full value in sterling money of all bona fide debts heretofore contracted." The Constitution provided that "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding,"[496] and that "The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases ... between a State, or the citizens thereof, and foreign States citizens, or subjects."[497]
Thus the case of Ware, Administrator, vs. Hylton et al., which involved the validity of a State law in conflict with a treaty, attracted the attention of the whole country when finally it reached the Supreme Court. The question in that celebrated controversy was whether a State law, suspending the collection of a debt due to a subject of Great Britain, was valid as against the treaty which provided that no "legal impediment" should prevent the recovery of the obligation.
Ware vs. Hylton was a test case; and its decision involved immense sums of money. Large numbers of creditors who had sought to cancel their debts under the confiscation laws were vitally interested. Marshall, in this case, made the notable argument that carried his reputation as a lawyer beyond Virginia and won for him the admiration of the ablest men at the bar, regardless of their opinion of the merits of the controversy.
It is an example of "the irony of fate" that in this historic legal contest Marshall supported the theory which he had opposed throughout his public career thus far, and to demolish which his entire after life was given. More remarkable still, his efforts for his clients were opposed to his own interests; for, had he succeeded for those who employed him, he would have wrecked the only considerable business transaction in which he ever engaged.[498] He was employed by the debtors to uphold those laws of Virginia which sequestered British property and prevented the collection of the British debts; and he put forth all his power in this behalf.
Three such cases were pending in Virginia; and these were heard twice by the National Court in Richmond as a consolidated cause, the real issue being the same in all. The second hearing was during the May Term of 1793 before Chief Justice Jay, Justice Iredell of the Supreme Court, and Judge Griffin of the United States District Court. The attorneys for the British creditors were William Ronald, John Baker, John Stark, and John Wickham. For the defendants were Alexander Campbell, James Innes, Patrick Henry, and John Marshall. Thus we see Marshall, when thirty-six years of age, after ten years of practice at the Richmond bar, interrupted as those years were by politics and legislative activities, one of the group of lawyers who, for power, brilliancy, and learning, were unsurpassed in America.
The argument at the Richmond hearing was a brilliant display of eloquence, reasoning, and erudition, and, among lawyers, its repute has reached even to the present day. Counsel on both sides exerted every ounce of their strength. When Patrick Henry had finished his appeal, Justice Iredell was so overcome that he cried, "Gracious God! He is an orator indeed!"[499] The Countess of Huntingdon, who was then in Richmond and heard the arguments of all the attorneys, declared: "If every one had spoken in Westminster Hall, they would have been honored with a peerage."[500]
In his formal opinion, Justice Iredell thus expressed his admiration: "The cause has been spoken to, at the bar, with a degree of ability equal to any occasion.... I shall as long as I live, remember with pleasure and respect the arguments which I have heard on this case: they have discovered an ingenuity, a depth of investigation, and a power of reasoning fully equal to anything I have ever witnessed.... Fatigue has given way under its influence; the heart has been warmed, while the understanding has been instructed."[501]
Marshall's argument before the District Court of Richmond must have impressed his debtor clients more than that of any other of their distinguished counsel, with the single exception of Alexander Campbell; for when, on appeal to the Supreme Court of the United States, the case came on for hearing in 1796, we find that only Marshall and Campbell appeared for the debtors.
It is unfortunate that Marshall's argument before the Supreme Court at Philadelphia is very poorly reported. But inadequate as the report is, it still reveals the peculiar clearness and the compact and simple reasoning which made up the whole of Marshall's method, whether in legal arguments, political speeches, diplomatic letters, or judicial opinions.
Marshall argued that the Virginia law barred the recovery of the debts regardless of the treaty. "It has been conceded," said he, "that independent nations have, in general, the right to confiscation; and that Virginia, at the time of passing her law, was an independent nation." A State engaged in war has the powers of war, "and confiscation is one of those powers, weakening the party against whom it is employed and strengthening the party that employs it." Nations have equal powers; and, from July 4, 1776, America was as independent a nation as Great Britain. What would have happened if Great Britain had been victorious? "Sequestration, confiscation, and proscription would have followed in the train of that event," asserted Marshall.
Why, then, he asked, "should the confiscation of British property be deemed less just in the event of an American triumph?" Property and its disposition is not a natural right, but the "creature of civil society, and subject in all respects to the disposition and control of civil institutions." Even if "an individual has not the power of extinguishing his debts," still "the community to which he belongs ... may ... upon principles of public policy, prevent his creditors from recovering them." The ownership and control of property "is the offspring of the social state; not the incident of a state of nature. But the Revolution did not reduce the inhabitants of America to a state of nature; and if it did, the plaintiff's claim would be at an end." Virginia was within her rights when she confiscated these debts.
As an independent nation Virginia could do as she liked, declared Marshall. Legally, then, at the time of the Treaty of Peace in 1783, "the defendant owed nothing to the plaintiff." Did the treaty revive the debt thus extinguished? No: For the treaty provides "that creditors on either side shall meet with no lawful impediment to the recovery" of their debts. Who are the creditors? "There cannot be a creditor where there is not a debt; and the British debts were extinguished by the act of confiscation," which was entirely legal.
Plainly, then, argued Marshall, the treaty "must be construed with reference to those creditors" whose debts had not been extinguished by the sequestration laws. There were cases of such debts and it was to these only that the treaty applied. The Virginia law must have been known to the commissioners who made the treaty; and it was unthinkable that they should attempt to repeal those laws in the treaty without using plain words to that effect.
Such is an outline of Marshall's argument, as inaccurately and defectively reported.[502]
Cold and dry as it appears in the reporter's notes, Marshall's address to the Supreme Court made a tremendous impression on all who heard it. When he left the court-room, he was followed by admiring crowds. The ablest public men at the Capital were watching Marshall narrowly and these particularly were captivated by his argument. "His head is one of the best organized of any one that I have known," writes the keenly observant King, a year later, in giving to Pinckney his estimate of Marshall. "This I say from general Reputation, and more satisfactorily from an Argument that I heard him deliver before the fed'l Court at Philadelphia."[503] King's judgment of Marshall's intellectual strength was that generally held.
Marshall's speech had a more enduring effect on those who listened to it than any other address he ever made, excepting that on the Jonathan Robins case.[504] Twenty-four years afterwards William Wirt, then at the summit of his brilliant career, advising Francis Gilmer upon the art of oratory, recalled Marshall's argument in the British Debts case as an example for Gilmer to follow. Wirt thus contrasts Marshall's method with that of Campbell on the same occasion:—
"Campbell played off all his Apollonian airs; but they were lost. Marshall spoke, as he always does, to the judgment merely and for the simple purpose of convincing. Marshall was justly pronounced one of the greatest men of the country; he was followed by crowds, looked upon, and courted with every evidence of admiration and respect for the great powers of his mind. Campbell was neglected and slighted, and came home in disgust.
"Marshall's maxim seems always to have been, 'aim exclusively at Strength:' and from his eminent success, I say, if I had my life to go over again, I would practice on his maxim with the most rigorous severity, until the character of my mind was established."[505]
In another letter to Gilmer, Wirt again urges his son-in-law to imitate Marshall's style. In his early career Wirt had suffered in his own arguments from too much adornment which detracted from the real solidity and careful learning of his efforts at the bar. And when, finally, in his old age he had, through his own mistakes, learned the value of simplicity in statement and clear logic in argument, he counseled young Gilmer accordingly.
"In your arguments at the bar," he writes, "let argument strongly predominate. Sacrifice your flowers.... Avoid as you would the gates of death, the reputation for floridity.... Imitate ... Marshall's simple process of reasoning."[506]
Following the advice of his distinguished brother-in-law, Gilmer studied Marshall with the hungry zeal of ambitious youth. Thus it is that to Francis Gilmer we owe what is perhaps the truest analysis, made by a personal observer, of Marshall's method as advocate and orator.
"So perfect is his analysis," records Gilmer, "that he extracts the whole matter, the kernel of the inquiry, unbroken, undivided, clean and entire. In this process, such is the instinctive neatness and precision of his mind that no superfluous thought, or even word, ever presents itself and still he says everything that seems appropriate to the subject.
"This perfect exemption from any unnecessary encumbrance of matter or ornament, is in some degree the effect of an aversion for the labour of thinking. So great a mind, perhaps, like large bodies in the physical world, is with difficulty set in motion. That this is the case with Mr. Marshall's is manifest, from his mode of entering on an argument both in conversation and in publick debate.
"It is difficult to rouse his faculties; he begins with reluctance, hesitation, and vacancy of eye; presently his articulation becomes less broken, his eye more fixed, until finally, his voice is full, clear, and rapid, his manner bold, and his whole face lighted up, with the mingled fires of genius and passion; and he pours forth the unbroken stream of eloquence, in a current deep, majestick, smooth, and strong.
"He reminds one of some great bird, which flounders and flounces on the earth for a while before it acquires the impetus to sustain its soaring flight.
"The characteristick of his eloquence is an irresistible cogency, and a luminous simplicity in the order of his reasoning. His arguments are remarkable for their separate and independent strength, and for the solid, compact, impenetrable order in which they are arrayed.
"He certainly possesses in an eminent degree the power which had been ascribed to him, of mastering the most complicated subjects with facility, and when moving with his full momentum, even without the appearance of resistance."
Comparing Marshall and Randolph, Gilmer says:—
"The powers of these two gentlemen are strikingly contrasted by nature. In Mr. Marshall's speeches, all is reasoning; in Mr. Randolph's everything is declamation. The former scarcely uses a figure; the latter hardly an abstraction. One is awkward; the other graceful.
"One is indifferent as to his words, and slovenly in his pronunciation; the other adapts his phrases to the sense with poetick felicity; his voice to the sound with musical exactness.
"There is no breach in the train of Mr. Marshall's thoughts; little connection between Mr. Randolph's. Each has his separate excellence, but either is far from being a finished orator."[507]
Another invaluable first-hand analysis of Marshall's style and manner of argument is that of William Wirt, himself, in the vivacious descriptions of "The British Spy":—
"He possesses one original, and, almost supernatural faculty, the faculty of developing a subject by a single glance of his mind, and detecting at once, the very point on which every controversy depends. No matter what the question; though ten times more knotty than 'the gnarled oak,' the lightning of heaven is not more rapid nor more resistless, than his astonishing penetration.
"Nor does the exercise of it seem to cost him an effort. On the contrary, it is as easy as vision. I am persuaded that his eye does not fly over a landscape and take in its various objects with more promptitude and facility, than his mind embraces and analyses the most complex subject.
"Possessing while at the bar this intellectual elevation, which enabled him to look down and comprehend the whole ground at once, he determined immediately and without difficulty, on which side the question might be most advantageously approached and assailed.
"In a bad cause his art consisted in laying his premises so remotely from the point directly in debate, or else in terms so general and so spacious, that the hearer, seeing no consequence which could be drawn from them, was just as willing to admit them as not; but his premises once admitted, the demonstration, however distant, followed as certainly, as cogently, as inevitably, as any demonstration in Euclid."[508]
Marshall's supremacy, now unchallenged, at the Virginia bar was noted by foreign observers. La Rochefoucauld testifies to this in his exhaustive volumes of travel:—
"Mr. J. Marshall, conspicuously eminent as a professor of the law, is beyond all doubt one of those who rank highest in the public opinion at Richmond. He is what is termed a federalist, and perhaps somewhat warm in support of his opinions, but never exceeding the bounds of propriety, which a man of his goodness and prudence and knowledge is incapable of transgressing.
"He may be considered as a distinguished character in the United States. His political enemies allow him to possess great talents but accuse him of ambition. I know not whether the charge be well or ill grounded, or whether that ambition might ever be able to impel him to a dereliction of his principles—a conduct of which I am inclined to disbelieve the possibility on his part.
"He has already refused several employments under the general government, preferring the income derived from his professional labours (which is more than sufficient for his moderate system of economy), together with a life of tranquil ease in the midst of his family and in his native town.
"Even by his friends he is taxed with some little propensity to indolence; but even if this reproach were well founded, he nevertheless displays great superiority in his profession when he applies his mind to business."[509]
When Jefferson foresaw Marshall's permanent transfer to public life he advised James Monroe to practice law in Richmond because "the business is very profitable;[510] ... and an opening of great importance must be made by the retirement of Marshall."[511]
Marshall's solid and brilliant performance in the British Debts case before the Supreme Court at Philadelphia did much more than advance him in his profession. It also focused upon him the keen scrutiny of the politicians and statesmen who at that time were in attendance upon Congress in the Quaker City. Particularly did the strength and personality of the Virginia advocate impress the Federalist leaders.
These vigilant men had learned of Marshall's daring championship of the Jay Treaty in hostile Virginia. And although in the case of Ware vs. Hylton, Marshall was doing his utmost as a lawyer before the Supreme Court to defeat the collection of the British debts, yet his courageous advocacy of the Jay Treaty outweighed, in their judgment, his professional labors in behalf of the clients who had employed him.
The Federalist leaders were in sore need of Southern support; and when Marshall was in Philadelphia on the British Debts case, they were prompt and unsparing in their efforts to bind this strong and able man to them by personal ties. Marshall himself unwittingly testifies to this. "I then [during this professional visit to Philadelphia] became acquainted," he relates, "with Mr. Cabot, Mr. Ames, Mr. Dexter, and Mr. Sedgwick of Massachusetts, Mr. Wadsworth of Connecticut, and Mr. King of New York. I was delighted with these gentlemen. The particular subject (the British Treaty) which introduced me to their notice was at that time so interesting, and a Virginian who supported, with any sort of reputation, the measures of the government, was such a rara avis, that I was received by them all with a degree of kindness which I had not anticipated. I was particularly intimate with Mr. Ames, and could scarcely gain credit with him when I assured him that the appropriations [to effectuate the treaty] would be seriously opposed in Congress."[512]
As we shall presently see, Marshall became associated with Robert Morris in the one great business undertaking of the former's life. Early in this transaction when, for Marshall, the skies were still clear of financial clouds, he appears to have made a small purchase of bank stock and ventured modestly into the commercial field. "I have received your letter of 18 ulto," Morris writes Marshall, "& am negotiating for Bank Stock to answer your demand."[513]
And again: "I did not succeed in the purchase of the Bank Stock mentioned in my letter of the 3d Ulto to you and as Mr Richard tells me in his letter of the 4 Inst that you want the money for the Stock, you may if you please draw upon me for $7000 giving me as much time in the sight as you can, and I will most certainly pay your drafts as they become due. The Brokers shall fix the price of the Stock at the market price at the time I pay the money & I will then state the Amt including Dividends & remit you the Balance but if you prefer having the Stock I will buy it on receiving your Answer to this, cost what it may."[514]
Soon afterward, Morris sent Marshall the promised shares of stock, apparently to enable him to return shares to some person in Richmond from whom he had borrowed them.
"You will receive herewith enclosed the Certificates for four shares of Bank Stock of the United States placed in your name to enable you to return the four shares to the Gentlemen of whom you borrowed them, this I thought better than remitting the money lest some difficulty should arise about price of shares. Two other shares in the name of Mr Geo Pickett is also enclosed herewith and I will go on buying and remitting others untill the number of Ten are completed for him which shall be done before the time limited in your letter of the 12h Inst The dividends shall also be remitted speedily."[515]
Again Washington desired Marshall to fill an important public office, this time a place on the joint commission, provided for in the Jay Treaty, to settle the British claims. These, as we have seen, had been for many years a source of grave trouble between the two countries. Their satisfactory adjustment would mean, not only the final settlement of this serious controversy, but the removal of an ever-present cause of war.[516] But since Marshall had refused appointment to three offices tendered him by Washington, the President did not now communicate with him directly, but inquired of Charles Lee, Attorney-General of Virginia, whether Marshall might be prevailed upon to accept this weighty and delicate business.
"I have very little doubt," replied Lee, "that Mr. John Marshall would not act as a Commissioner under the Treaty with Great Britain, for deciding on the claims of creditors. I have been long acquainted with his private affairs, and I think it almost impossible for him to undertake that office. If he would, I know not any objection that subsists against him.
"First, he is not a debtor.[517] Secondly, he cannot be benefitted or injured by any decision of the Commissioners. Thirdly, his being employed as counsel, in suits of that kind, furnishes no reasonable objection; nor do I know of any opinions that he has published, or professes, that might, with a view of impartiality, make him liable to be objected to.
"Mr. Marshall is at the head of his profession in Virginia, enjoying every convenience and comfort; in the midst of his friends and the relations of his wife at Richmond; in a practice of his profession that annually produces about five thousand dollars on an average; with a young and increasing family; and under a degree of necessity to continue his profession, for the purpose of complying with contracts not yet performed."[518]
The "contracts" which Marshall had to fulfill concerned the one important financial adventure of his life. It was this, and not, as some suppose, the condition of his invalid wife, to which Marshall vaguely referred in his letter to Washington declining appointment as Attorney-General and as Minister to France.
The two decades following the establishment of the National Government under the Constitution were years of enormous land speculation. Hardly a prominent man of the period failed to secure large tracts of real estate, which could be had at absurdly low prices, and to hold the lands for the natural advance which increasing population would bring. The greatest of these investors was Robert Morris, the financier of the Revolution, the second richest man of the time,[519] and the leading business man of the country.
John Marshall had long been the attorney in Virginia for Robert Morris, who frequently visited that State, sometimes taking his family with him. In all probability, it was upon some such journey that James M. Marshall, the brother of John Marshall, met and became engaged to Hester Morris, daughter of the great speculator, whom he married on April 19, 1795.[520] James M. Marshall—nine years younger than his brother—possessed ability almost equal to John Marshall and wider and more varied accomplishments.[521]
It is likely that the Pennsylvania financier, before the marriage, suggested to the Marshall brothers the purchase of what remained of the Fairfax estate in the Northern Neck, embracing over one hundred and sixty thousand acres of the best land in Virginia.[522] At any rate, sometime during 1793 or 1794 John Marshall, his brother, James M. Marshall, his brother-in-law, Rawleigh Colston, and General Henry Lee contracted for the purchase of this valuable holding.[523] In January of that year James M. Marshall sailed for England to close the bargain.[524] The money to buy the Fairfax lands was to be advanced by Robert Morris, who, partly for this purpose, sent James M. Marshall to Europe to negotiate[525] loans, immediately after his marriage to Hester Morris.
At Amsterdam "some Capitalists proposed to supply on very hard terms a Sum more than Sufficient to pay Mr. Fairfax," writes Morris, and James M. Marshall "has my authority to apply the first Monies he receives on my accot to that Payment."[526] By the end of 1796 Morris's over-speculations had gravely impaired his fortune. The old financier writes pathetically to James M. Marshall: "I am struggling hard, very hard, indeed to regain my Position." He tells his son-in-law that if a loan cannot be obtained on his other real estate he "expects these Washington Lotts will be the most certain of any Property to raise Money on"; and that "[I] will have a number of them Placed under your Controul."[527]
The loan failed, for the time being, but, writes Morris to John Marshall, "Mr. Hottenguer[528] who first put the thing in motion says it will come on again" and succeed; "if so, your brother will, of course, be ready for Mr. Fairfax." Morris is trying, he says, to raise money from other sources lest that should fail. "I am here distressed exceedingly in money matters," continues the harried and aging speculator "as indeed every body here are but I will immediately make such exertions as are in my power to place funds with your brother and I cannot but hope that his and my exertions will produce the needful in proper time to prevent mischief."[529]
A month later Morris again writes John Marshall that he is "extremely anxious & fearing that it [the Amsterdam loan] may fall through I am trying to obtain a loan here for the purposes of your Brother in London. This," says the now desperate financier, "is extremely difficult, for those who have money or credit in Europe seem to dread every thing that is American." He assures John Marshall that he will do his utmost. "My anxiety ... [to make good the Fairfax purchase] is beyond what I can express." Alexander Baring "could supply the money ... but he parries me. He intends soon for the Southward I will introduce him to you."[530]
The title to the Fairfax estate had been the subject of controversy for many years. Conflicting grants, overlapping boundaries, sequestration laws, the two treaties with Great Britain, were some of the elements that produced confusion and uncertainty in the public mind and especially in the minds of those holding lands within the grant. The only real and threatening clouds upon the title to the lands purchased by the Marshall syndicate, however, were the confiscatory laws passed during the Revolution[531] which the Treaty of Peace and the Jay Treaty nullified.[532] There were also questions growing out of grants made by the colonial authorities between 1730 and 1736, but these were not weighty.
The case of Hunter vs. Fairfax, Devisee, involving these questions, was pending in the Supreme Court of the United States. John Marshall went to Philadelphia and tried to get the cause advanced and decided. He was sadly disappointed at his failure and so wrote his brother. "Your Brother has been here," writes Morris to his son-in-law, "as you will see by a letter from him forwarded by this conveyance. He could not get your case brought forward in the Supreme Court of the U. S. at which he was much dissatisfied & I am much concerned thereat, fearing that real disadvantage will result to your concern thereby."[533]
The case came on for hearing in regular course during the fall term. Hunter, on the death of his attorney, Alexander Campbell, prayed the Court, by letter, for a continuance, which was granted over the protest of the Fairfax attorneys of record, Lee and Ingersoll of Philadelphia, who argued that "from the nature of the cause, delay would be worse for the defendant in error [the Fairfax heir] than a decision adverse to his claim." The Attorney-General stated that the issue before the Court was "whether ... the defendant in error being an alien can take and hold the lands by devise. And it will be contended that his title is completely protected by the treaty of peace." Mr. Justice Chase remarked: "I recollect that ... a decision in favor of such a devisee's title was given by a court in Maryland. It is a matter, however, of great moment and ought to be deliberately and finally settled."[534] The Marshalls, of course, stood in the shoes of the Fairfax devisee; had the Supreme Court decided against the Fairfax title, their contract of purchase would have been nullified and, while they would not have secured the estate, they would have been relieved of the Fairfax indebtedness. It was, then, a very grave matter to the Marshalls, in common with all others deriving their titles from Fairfax, that the question be settled quickly and permanently.
A year or two before this purchase by the Marshalls of what remained of the Fairfax estate, more than two hundred settlers, occupying other parts of it, petitioned the Legislature of Virginia to quiet their titles.[535] Acting on these petitions and influenced, perhaps, by the controversy over the sequestration laws which the Marshall purchase renewed, the Legislature in 1796 passed a resolution proposing to compromise the dispute by the State's relinquishing "all claim to any lands specifically appropriated by ... Lord Fairfax to his own use either by deed or actual survey ... if the devises of Lord Fairfax, or those claiming under them, will relinquish all claims to lands ... which were waste and unappropriated at the time of the death of Lord Fairfax."[536]
Acting for the purchasing syndicate, John Marshall, in a letter to the Speaker of the House, accepted this legislative offer of settlement upon the condition that "an act passes during this session confirming ... the title of those claiming under Mr. Fairfax the lands specifically appropriated and reserved by the late Thomas Lord Fairfax or his ancestors for his or their use."[537]
When advised of what everybody then supposed to be the definitive settlement of this vexed controversy, Robert Morris wrote John Marshall that "altho' you were obliged to give up a part of your claim yet it was probably better to do that than to hold a contest with such an opponent [State of Virginia]. I will give notice to Mṛ Jaṣ Marshall of this compromise."[538] John Marshall, now sure of the title, and more anxious than ever to consummate the deal by paying the Fairfax heir, hastened to Philadelphia to see Morris about the money.
"Your Brother John Marshall Esqṛ is now in this City," writes Robert Morris to his son-in-law, "and his principal business I believe is to see how you are provided with Money to pay Lord Fairfax.... I am so sensible of the necessity there is for your being prepared for Lord Fairfax's payment that there is nothing within my power that I would not do to enable you to meet it."[539]
The members of the Marshall syndicate pressed their Philadelphia backer unremittingly, it appears, for a few days later he answers what seems to have been a petulant letter from Colston assuring that partner in the Fairfax transaction that he is doing his utmost to "raise the money to enable Mr. James Marshall to meet the Payments for your Purchase at least so far as it is incumbent on me to supply the means.... From the time named by John Marshall Esqre when here, I feel perfect Confidence, because I will furnish him before that period with such Resources & aid as I think cannot fail."[540]
PAGE OF JAMES MARSHALL'S ACCOUNT WITH ROBERT MORRIS SHOWING PAYMENT OF £7700 TO FAIRFAX
(Facsimile)
Finally Marshall's brother negotiated the loan, an achievement which Morris found "very pleasing, as it enables you to take the first steps with Lord Fairfax for securing your bargain."[541] Nearly forty thousand dollars of this loan was thus applied. In his book of accounts with Morris, James M. Marshall enters: "Jany 25 '97 To £7700 paid the Revḍ Denny Fairfax and credited in your [Morris's] account with me 7700" (English pounds sterling).[542] The total amount which the Marshalls had agreed to pay for the remnant of the Fairfax estate was "fourteen thousand pounds British money."[543] When Robert Morris became bankrupt, payment of the remainder of the Fairfax indebtedness fell on the shoulders of Marshall and his brother.
This financial burden caused Marshall to break his rule of declining office and to accept appointment as one of our envoys to France at the time of Robert Morris's failure and imprisonment for debt; for from that public employment of less than one year, Marshall, as we shall see, received in the sorely needed cash, over and above his expenses, three times the amount of his annual earnings at the bar.[544] "Mr. John Marshall has said here," relates Jefferson after Marshall's return, "that had he not been appointed minister [envoy] to France, he was desperate in his affairs and must have sold his estate [the Fairfax purchase] & that immediately. That that appointment was the greatest God-send that could ever have befallen a man."[545] Jefferson adds: "I have this from J. Brown and S. T. Mason [Senator Mason]."[546]
So it was that Marshall accepted a place on the mission to France[547] when it was offered to him by Adams, who "by a miracle," as Hamilton said, had been elected President.[548]