Beacon Lights of History, Volume 11: American Founders

by John Lord

John Marshall was born Sept. 24, 1755, in Fauquier County, Virginia, at a small village then called Germantown, but now known as Midland, a station on the Southern Railway not far south of Manassas. His grandfather, John Marshall, the first of the family of whom there appears to be any record, was an emigrant from Wales. He left four sons, the eldest of whom was Thomas Marshall, the father of the Chief Justice. Thomas Marshall, though a man of meagre early education, possessed great natural gifts, and rendered honorable and useful public service both as a member of the Virginia Legislature, and as a soldier in the Revolutionary War, in which he rose to the rank of colonel. His son, John Marshall, was the eldest of fifteen children. Of his mother, whose maiden name was Keith, little is known, but it has been well observed by one of Marshall's biographers, that, as she reared her fifteen children--seven sons and eight daughters--all to mature years, she could have had little opportunity to make any other record for herself, and could hardly have made a better one.

Subsequently to his birth, Marshall's parents removed to an estate called Oak Hill, in the western part of Fauquier County. It was here that in 1775, when nineteen years of age, he heard the call of his country and entered the patriot army as a lieutenant. We have of him at this time the first personal description, written by a kinsman who was an eye-witness of the scene, and preserved in the eulogy delivered by Mr. Binney before the Select and Common Councils of Philadelphia on Sept. 24, 1835. "His figure," says the writer, "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 blackness, 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 features of the face were in harmony with this outline, and the temples fully developed. The result of this 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 trousers of the same material fringed with white. A round black hat, mounted with the buck's tail for a 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 company, before he required the men to imitate him, and then proceeded to exercise them, with the most perfect temper.... 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.... He addressed the company for something like an hour.... He spoke at the close of his speech of the Minute Battalion about to be raised, and said he was 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 other 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 after sunset."

The patriot forces in which Marshall was enrolled were described as minute-men, of whom it was said by John Randolph that they "were raised in a minute, armed in a minute, marched in a minute, fought in a minute, and vanquished in a minute." Their uniform consisted of homespun hunting shirts, bearing the words "Liberty or Death" in large white letters on the breast, while they wore bucks' tails in their hats and tomahawks and scalping-knives in their belts. We are told, and may readily believe, that their appearance inspired in the enemy not a little apprehension; but we are also assured, and may as readily believe, that this feeling never was justified by any act of cruelty. Their first active service was seen in the autumn of 1775, when they marched for Norfolk, where Lord Dunmore had established his headquarters. They saw their first fighting at Great Bridge, where the British troops were defeated with heavy loss. Subsequently, the Virginia forces to which Marshall belonged joined the army of Washington in New Jersey, and he saw service not only in that State, but also in Pennsylvania and New York, and, later in the war, again in Virginia. In May, 1777, he was appointed a captain. He took part in the battles of Iron Hill and Brandywine. He was also present at Monmouth, at Paulus (or Powles) Hook, and at the capture of Stony Point. He endured the winter's sufferings at Valley Forge, where because of his patience, firmness, and good humor, he won the special regard of the soldiers and his brother-officers. In the course of his military service he often acted as judge-advocate; and he made the acquaintance of Washington and Hamilton, with both of whom he contracted a lasting friendship.

As to the effect of these early experiences on the formation of his opinions, Marshall himself has testified. "I am," said he on a certain occasion, "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."

In 1780 Marshall was admitted to the Bar, and after another term of service in the army he began, in 1781, the practice of the law in Fauquier County. His professional attainments must then have been comparatively limited. His education in letters he had derived solely from his father, who was fond of literature and possessed some of the writings of the English masters, and from two gentlemen of classical learning, whose tuition he enjoyed for the brief period of two years. Of legal education he had had, according to our present standards, exceedingly little. It is said that when about eighteen years of age he began the study of Blackstone; but apart from this his legal education seems to have been gained from a short course of lectures by Chancellor Wythe, at William and Mary College, and from such reading as he was able to indulge in during his military service. And yet, removing to Richmond about 1783, he almost immediately rose to professional eminence. "This extraordinary man," said William 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 of 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.... He possesses one original and almost superhuman 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."

From 1782 to 1795, Marshall was repeatedly elected to the Virginia Legislature, the last time without his knowledge and against his wishes; and he also served one term as a member of the Executive Council of the State; but, as his residence was for the most part at Richmond, his public service did not seriously interrupt his career at the Bar. His experience in State politics, however, served to deepen his conviction of the need of an efficient and well-organized national government and of restrictions on the power of the States.

In the formation of the Constitution of the United States Marshall had no hand; he was not a member of the convention by which it was framed; but when it was submitted to the several States for their action, he became a determined advocate of its adoption. In the Virginia convention, which was called to act upon that question, the prospects of a favorable decision seemed at first to be most unpromising. Among those who opposed ratification we find the names of Henry, Mason, Grayson, and Monroe, names which sufficiently attest that the opposition was one, not of mere faction or obstruction, but of principle and patriotic feeling. Henry, who had been one of the first in earlier days to sound the note of revolution, saw in the proposed national government a portent to popular liberties. In the office of President he perceived "the likeness of a kingly crown." In the control of the purse and the sword, he foresaw the extinction of freedom. In the power to make treaties, to regulate commerce, and to adopt laws, he discerned an "ambuscade" in which the rights of the States and of the people would be destroyed unawares. To these alarming predictions the advocates of ratification replied with strong and temperate reasoning, and, while Madison was their leader, among those who won distinction in the contest stood Marshall. He argued that the plan adopted by the Federal Convention provided for a "regulated democracy," the only alternative to which was despotism. He contended for the establishment of an efficient government as the only means of assuring popular rights and the preservation of the public faith, violations of which were constantly occurring under the existing government. It is interesting to notice that, in replying to the suggestion that the legislative power of the proposed government would prove to be practically unlimited, he declared: "If they [the United States] 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 against.... They would declare it void." In the end the Convention ratified the Constitution by a majority of ten votes, a result probably influenced by the circumstance that it had then been accepted by nine States, and had thus by its terms been established between the adhering commonwealths.

After the organization of the national government Marshall consistently supported the measures of Washington's administrations, including the Jay treaty, and became a leader of the Federalist party, which, in spite of Washington's great personal hold on the people, was in a minority in Virginia. But he did not covet office. He declined the position of Attorney-General of the United States, which was offered to him by Washington, as well as the mission to France as successor to Monroe. In 1797, however, at the earnest solicitation of President Adams, he accepted in a grave emergency the post of envoy-extraordinary and minister-plenipotentiary to that country on a special mission, in which he was associated with Charles Cotesworth Pinckney, of South Carolina, and Elbridge Gerry, of Massachusetts.

Few diplomatic enterprises have had so strange a history. When the plenipotentiaries arrived in Paris, the Directory was at the height of its power, and Talleyrand was its minister of foreign affairs. He at first received the envoys unofficially, but afterwards intimated to them, through his private secretary, that they could not have a public audience of the Directory till their negotiations were concluded. Meanwhile, they were waited upon by various persons, who represented that, in order to effect a settlement of the differences between the two countries, it would be necessary to place a sum of money at the disposal of Talleyrand as a douceur for the ministers (except Merlin, the minister of justice, who was already obtaining enough from the condemnation of vessels), and also to make a loan of money to the government. The plenipotentiaries, though they at first repulsed these suggestions, at length offered to send one of their number to America to consult the government on the subject of a loan, provided that the Directory would in the meantime suspend proceedings against captured American vessels. This offer was not accepted, and the American representatives, after further conference with the French intermediaries, stated that they considered it degrading to their country to carry on further indirect intercourse, and that they had determined to receive no further propositions unless the persons who bore them had authority to treat. In April, 1798, after spending in the French capital six months, during which they had with Talleyrand two unofficial interviews and exchanged with him an ineffectual correspondence, Pinckney and Marshall left Paris, Gerry, to the great dissatisfaction of his government, remaining behind. Marshall was the first to reach the United States. He was greeted with remarkable demonstrations of respect and approbation; for, although his mission was unsuccessful, he had powerfully assisted in maintaining a firm and dignified position in the negotiations. His entrance into Philadelphia "had the éclat of a triumph." It was at a public dinner given to him by members of both Houses of Congress that the sentiment was pronounced, "Millions for defence, but not a cent for tribute." This sentiment has often been ascribed to Pinckney, who is supposed to have uttered it when approached by the unofficial agents in Paris. The correspondence shows, however, that the words employed by Mr. Pinckney were, "No, no; not a sixpence!" The meaning was similar, but the phrase employed at Philadelphia is entitled to a certain immortality of its own.

On his return to the United States, Marshall resumed the practice of his profession; but soon afterwards, at the earnest entreaty of Washington, he became a candidate for Congress, declining for that purpose an appointment to the Supreme Court of the United States, as successor to Mr. Justice Wilson. He was elected after an exciting canvass, and in December, 1799, took his seat. He immediately assumed a leading place among the supporters of President Adams's administration, though on one occasion he exhibited his independence of mere party discipline by voting to repeal the obnoxious second section of the Sedition Law. But of all the acts by which his course in Congress was distinguished, the most important was his defence of the administration, in the case of Jonathan Robbins, alias Thomas Nash, By the twenty-seventh article of the Jay treaty it was provided that fugitives from justice should be delivered up for the offence of murder or forgery. Under this stipulation Robbins, alias Nash, was charged with the commission of the crime of murder on board a British privateer on the high seas. He was arrested on a warrant issued upon the affidavit of the British Consul at Charleston, South Carolina. After his arrest an application was made to Judge Bee, sitting in the United States Circuit Court at Charleston, for a writ of habeas corpus. While Robbins was in custody, the President, John Adams, addressed a note to Judge Bee, requesting and advising him, if it should appear that the evidence warranted it, to deliver the prisoner up to the representatives of the British government. The examination was held by Judge Bee, and Robbins was duly surrendered. It is an illustration of the vicissitudes of politics that, on the strength of this incident, the cry was raised that the President had caused the delivery up of an American citizen who had previously been impressed into the British service. For this charge there was no ground whatever; but it was made to serve the purposes of the day, and was one of the causes of the popular antagonism to the administration of John Adams. When Congress met in December, 1799, a resolution was offered by Mr. Livingston, of New York, severely condemning the course of the administration. Its action was defended in the House of Representatives by Marshall on two grounds: first, that the case was one clearly within the provisions of the treaty; and, second, that no act having been passed by Congress for the execution of the treaty, it was incumbent upon the President to carry it into effect by such means as happened to be within his power. The speech which Marshall delivered on that occasion is said to have been the only one that he ever revised for publication. It "at once placed him," as Mr. Justice Story has well said, "in the front rank of constitutional statesmen, silenced opposition, and settled forever the points of national law upon which the controversy hinged." So convincing was it that Mr. Gallatin, who had been requested by Mr. Livingston to reply, declined to make the attempt, declaring the argument to be unanswerable.