As regards the effect of his earlier experience in enlarging the circle of a patriot’s thoughts and affections, he himself has said: “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 maxim, ‘United we stand, divided we fall,’ was the maxim of every orthodox American; and I had imbibed these sentiments so thoroughly that they constituted a part of my being. I carried them with me into the army, where I found myself associated with brave men from different States who were risking life and everything valuable in a common cause; … and where I was confirmed in the habit of considering America as my country and Congress as my government.” It was this confirmed “habit of considering America as my country,” communicated by him to his countrymen, which enabled them to carry through the great struggle of forty years ago, and to save for us all, North and South, the inestimable treasure of the Union.
After Marshall’s marriage, in January, 1783, he made Richmond his home for the rest of his life. It was still a little town, but it had lately become the capital of the State, and the strongest men at the bar gradually gathered there. Marshall met them all. One has only to look at the law reports of Call and Washington to see the place that he won. He is found in most of the important cases. In his time no man’s name occurs oftener, probably none so often.
The earliest case in which the printed reports show his name is that of Hite v. Fairfax (4 Call’s Reports, 42), in May, 1786, and his argument seems to be fully reported. It was a very important case, and Marshall represented tenants of Lord Fairfax. There were conflicting grants on the famous “Northern Neck” of Virginia, an extensive region given by the crown to Lord Fairfax’s ancestor, whose boundaries had been in dispute. It comprised the land between the Potomac and the Rappahannock, “within the heads of the rivers … the courses of the said rivers, as they are commonly called or known by the inhabitants and descriptions of those parts, and Chesapeake Bay, together with the rivers themselves and all the islands within the banks of the rivers.” This description was finally admitted by the crown (in 1745) to include all the land between the head springs of the Potomac and those of the south branch of the Rappahannock. Bishop Meade[10] describes it as the region which, beginning on the Chesapeake Bay, lies between the Potomac and Rappahannock rivers, and crossing the Blue Ridge, or passing through it with the Potomac at Harper’s Ferry, extends with that river to the heads thereof in the Alleghany Mountains, and thence by a straight line crosses the North Mountain and Blue Ridge at the headwaters of the Rappahannock, … “the most fertile part of Virginia.”
Marshall had now to meet a total denial of Lord Fairfax’s title. His argument of ten or twelve pages shows already the characteristics, the cogency, clear method, and neat precision of thought and speech, by which his later work was marked. “I had conceived,” he says, “that it was not more certain that there was such a tract of country as the Northern Neck than that Lord Fairfax was the proprietor of it.… Gentlemen cannot suppose that a grant made by the crown to the ancestor for services rendered or even for affection can be invalidated in the hands of an heir because these services and affections are forgotten, or because the thing granted has, from causes which must have been foreseen, become more valuable than when it was given. And if it could not be invalidated in the hands of the heir, much less can it be in the hands of the purchaser.” As regards the construction of the grant: “Whether Lord Fairfax’s grant extended originally beyond the forks of the rivers or not, will no more admit of argument than it ever could have admitted of a doubt. But whether it should be bounded by the north or south fork of the Rappahannock was a question involved in more uncertainty.… It is, however, no longer a question, for it has been decided.… That decision did not create or extend Lord Fairfax’s right, but determined what the right originally was. The bounds of many patents are doubtful; the extent of many titles uncertain: but when a decision is once made on them, it removes the doubt and ascertains what the original boundaries were.” In reference to a personal appeal in behalf of certain settlers, he says, “Those who explore and settle new countries are generally bold, hardy, and adventurous men, whose minds as well as bodies are fitted to encounter danger and fatigue; their object is the acquisition of property, and they generally succeed. None will say that the complainants have failed; and if their hardships and dangers have any weight in the court, the defendants share in them, and have equal claim to countenance; for they, too, with humbler views and less extensive prospects, have explored, bled for, and settled a till then uncultivated desert.”
Compare with this the like simple felicity and exactness of expression in his last reported utterance in court, when he was closing his great career as Chief Justice of the United States, forty-nine years later. He is refusing a motion for delay: “The court has taken into its serious and anxious consideration the motion made on the part of the government to continue the cause of Mitchel v. The United States to the next term. Though the hope of deciding causes to the mutual satisfaction of parties would be chimerical, that of convincing them that the case has been fully and fairly considered, that due attention has been given to the arguments of counsel, and that the best judgment of the court has been exercised on the case, may be sometimes indulged. Even this is not always attainable. In the excitement produced by ardent controversy, gentlemen view the same object through such different media that minds not unfrequently receive therefrom precisely opposite impressions. The court, however, must see with its own eyes, and exercise its own judgment guided by its own reason.… The opinion of the court will be delivered.”[11]
At first, he had brought from the army, and from his home on the frontier, simple and rustic ways which surprised some persons at Richmond, whose conception of greatness was associated with very different models of dress and behavior. “He was one morning strolling,” we are told, “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 a little pleasantry with the landlord, and then passed on.” A gentleman from the country was present, who had a case coming on before the Court of Appeals, and was referred by the landlord to Marshall as the best lawyer to employ. But “the careless, languid air” of Marshall had so prejudiced the man that he refused to employ him. The clerk, when this client entered the court-room, also recommended Marshall, but the other would have none of him. A venerable-looking lawyer, with powdered wig and in black cloth, soon entered, and the gentleman engaged him. In the first case that came up, this man and Marshall spoke on opposite sides. The gentleman listened, saw his mistake, and secured Marshall at once; frankly telling him the whole story, and adding that while he had come with one hundred dollars to pay his lawyer, he had but five dollars left. Marshall good-naturedly took this, and helped in the case. In the Virginia Federal Convention of 1788, at the age of thirty-three, he is described, rising after Monroe had spoken, as “a tall young man, slovenly dressed in loose summer apparel.… His manners, like those of Monroe, were in strange contrast with those of Edmund Randolph or of Grayson.”
In such stories as these, one is reminded, as he is often reminded, of a resemblance between Marshall and Lincoln. Very different men they were, but both thorough Americans, with unborrowed character and manners, and a lifelong flavor derived from no other soil.
At the height of Marshall’s reputation, in 1797, a French writer, who had visited Richmond lately, in speaking of Edmund Randolph, says, “He has a great practice, and stands, in that respect, nearly on a par with Mr. J. Marshall, the most esteemed and celebrated counselor of this town.” He mentions Marshall’s annual income as being four or five thousand dollars. “Even by his friends,” it is added, “he is taxed with some little propensity to indolence, but he nevertheless displays great superiority when he applies his mind to business.” Another contemporary, who praises his force and eloquence in speaking, yet says: “It is difficult to rouse his faculties. He begins with reluctance, hesitation, and vacancy of eye.… He reminds one of some great bird, which flounders on the earth for a while before it acquires impetus to sustain its soaring flight.” And finally, William Wirt, who was seventeen years Marshall’s junior, and came to the bar in 1792, when Marshall was nearly at the head of it, writing anonymously in 1804, describes him as one, “who, without the advantage of person, voice, attitude, gesture, or any of the ornaments of an orator, deserves to be considered as one of the most eloquent men in the world.” He attributes to him “one original and almost supernatural faculty, … of developing a subject by a single glance of his mind.… His eyes do not fly over a landscape and take in its various objects with more promptitude and facility than his mind embraces and analyzes the most complex subject.… All his eloquence consists in the apparently deep self-conviction and the emphatic earnestness and energy of his style, the close and logical connection of his thoughts, and the easy gradations by which he opens his lights on the attentive minds of his hearers.”
In 1789 he declined the office of District Attorney of the United States at Richmond,[12] in 1795 that of Attorney-General of the United States, and in 1796 that of Minister to France, all offered him by Washington. When President Adams persuaded him, in 1797, to go, with Pinckney and Gerry, as envoy to France, he wrote to Gerry of “General Marshall” (as he was then called, from his rank of brigadier general, since 1793, in the Virginia militia), “He is a plain man, very sensible, cautious, guarded, and learned in the law of nations.” The extraordinary details of that unsuccessful six months’ attempt to come to terms with France are found in Marshall’s very able dispatches and in the diary which he kept;[13] for, with the instinct of a man of affairs, he failed not to remember, with Thomas Gray, that “a note is worth a cartload of recollections.” His own part in the business was marked by great moderation and ability; and on his return, in 1798, he was received at Philadelphia with remarkable demonstrations and the utmost enthusiasm. A correspondent of Rufus King, writing from New York in July of that year, says, “No two men can be more beloved and honored than Pinckney and Marshall;” and again in November: “Saving General Washington, I believe the President, Pinckney, and Marshall are the most popular characters now in our country. There is a certain something in the correspondence of Pinckney and Marshall … that has united all heads and hearts in their eulogy.” It is understood that the American side of this correspondence was by Marshall. Gerry had allowed himself in a measure to be detached by the Directory from his associates, to their great displeasure. With them, in important respects, he disagreed.