Chapter VIII (4)

"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 a section of country 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 ascertaining 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 expected to attend, but did not. John Marshall had been appointed Lieutenant to it. His father had formerly commanded it. Soon after Lieutenant Marshall's appearance 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 Captain would not be there, and that he had been appointed Lieutenant instead of a better:--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 Massachusetts, between the British and Americans, in which the Americans were victorious, but that more fighting 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 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 blackness, strong and penetrating, beaming with intelligence and good nature; an upright forehead, rather low, was terminated in a {183} 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 trowsers of the same material fringed with white. A round black hat, mounted with the bucks-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. Never did man possess a temper more happy, or if otherwise, more subdued or better disciplined.

"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 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."

"This is a portrait," to which, as we can testify with Mr. Binney, "in simplicity, gaiety of heart, and manliness of spirit," John Marshall "never lost his resemblance. All who knew him well, will recognize its truth to nature."

In the summer of 1775, he was appointed a Lieutenant in the "Minute Battalion;" and having been sent, in the next autumn, to defend the country around Norfolk against a predatory force under Lord Dunmore, he, on the 9th of December, had a full and honorable share in the successful action at the Great Bridge, which resulted in Lord D.'s defeat, and flight to his ships. In July 1776, being made lieutenant in the 11th Virginia Regiment in the Continental Service, he marched to the Middle States, where, in May 1777, he was promoted to a captaincy. Remaining constantly in service from this time until the close of 1779, he participated largely and actively in the most trying difficulties of the darkest period of the Revolution. He was in the skirmish at Iron Hill, and the battles of Brandywine, Germantown, and Monmouth. "He was one of that body of men, never surpassed in the history of the world, who, unpaid, unclothed, unfed,--tracked the snows of Valley Forge with the blood of their footsteps in the rigorous winter of 1778, and yet turned not their faces from their country in resentment, or from their enemies in fear."[5] Acting often as Deputy Judge Advocate, he formed a wide acquaintance and influence among his brother officers. "I myself," says Judge Story, "have often heard him spoken of by these veterans in terms of the highest praise. In an especial manner, the officers of the Virginia Line, (now, 'few and faint, but fearless still') appeared almost to idolize him." During this period of his service he became acquainted with Gen. Washington and Col. Hamilton.

[Footnote 5: Mr. Binney.]

In the winter of 1779, Captain Marshall was sent to Virginia as a supernumerary, to take the command of such men as the State Legislature might entrust to him. He used this opportunity, to attend a course of Law-Lectures, delivered by Mr. (afterwards Chancellor) Wythe, in William & Mary College; and Mr. (afterwards Bishop) Madison's Lectures on Natural Philosophy. In the following summer, he was licensed to practise Law; and in October, rejoined the army. It was probably on this occasion, that he went on foot from Virginia to Philadelphia, in order to be inoculated for the small pox; travelling at the rate of thirty-five miles daily. On his arrival, (as we learn from one to whom he related the incident,) he was refused admittance into one of the hotels, on account of his long beard and shabby clothing. He continued in the army till the end of Arnold's invasion of Virginia; when, there being still a redundancy of officers in the Virginia line, he resigned his commission, and devoted himself to his Law studies. The courts were then silenced in Virginia, by the tumult of War. As soon as they were opened, after the capture of Cornwallis, Mr. Marshall commenced practice.

"But a short time elapsed after his appearance at the bar of Virginia, before he attracted the notice of the public. His placidity, moderation, and calmness, irresistibly won the esteem of men, and invited them to intercourse with him;--his benevolent heart, and his serene and at times joyous temper, made him the cherished companion of his friends;--his candor and integrity attracted the confidence of the bar;--and that extraordinary comprehension and grasp of mind, by which difficulties were seized and overcome without effort or parade, commanded the attention and respect of the Courts of Justice. This is the traditionary account of the first professional years of John Marshall. He accordingly rose rapidly to distinction, and to a distinction which nobody envied, because he seemed neither to wish it, nor to be conscious of it himself."[6]

[Footnote 6: Mr. Binney.]

In April 1782, he was chosen a member of the House of Delegates, in the Virginia Legislature; and in the next autumn, of the Executive Council. In January 1783, he married Miss Ambler, daughter of Jacquelin Ambler, then Treasurer of Virginia. To this lady he had become attached while in the army; and their union of nearly fifty years, amid the most devoted affection, was broken by her death, about three years before his own. Having fixed his residence in Richmond, he resigned his seat in the Council, the more closely to pursue his profession; but his friends and former constituents in Fauquier, nevertheless, elected him again to represent them in the Legislature. In 1787, he was chosen to represent the city of Richmond.

Times of civil trouble had now come, teeming with dangers hardly less than those which had beset the country ten years before. The Confederation, by which the States were united, was found too feeble a bond of union, and a still feebler means of concurrent action. It could resolve, legislate, and make requisitions upon the States; but had no power to effectuate its resolutions, laws, or requisitions. It could contract debts, but not lay taxes of any kind to pay them. It could declare war, but not raise armies to wage it. It could make treaties, but not so as to regulate commerce--perhaps the most frequent and important aim of treaties. Each State had the determining of its own scale of duties on imports; the power of coining money, and of emitting paper-money at pleasure: conflicting revenue-laws, therefore, and a disordered currency, made "confusion worse confounded." The public debt, incurred by the revolution, was unpaid. More than three hundred millions of continental paper money were unredeemed; and {184} having depreciated to the value of one dollar for every hundred, had ceased to circulate. Public credit was nearly at an end: private credit, by the frequent violation of contracts, was at an equally low ebb: the administration of civil justice was suspended, sometimes by the wilful delinquency of the courts, sometimes by state-laws, restraining their proceedings. Commerce, Agriculture, Manufactures--industry of every kind,--were crippled. "Laws suspending the collection of debts; insolvent laws; instalment laws; tender laws; and other expedients of a like nature, which, every reflecting man knew would only aggravate the evils, were familiarly adopted, or openly and boldly vindicated. Popular leaders, as well as men of desperate fortunes, availed themselves (as is usual on such occasions) of this agitating state of things to inflame the public mind, and to bring into public odium those wiser statesmen, who labored to support the public faith, and to preserve the inviolability of private contracts." To strengthen the arm of the general government, and invest it with larger powers over the commerce, the money, and the foreign and mutual relations of the States--was believed by most people to be the only remedy for these intolerable evils. Mr. Marshall concurred with Gen. Washington, Mr. Madison, and the majority of their countrymen, in approving of this remedy; and as a member of the State Legislature, advocated the call of a Convention, to revise the Articles of Confederation. Whether they should be so altered, as to increase materially the powers of the Federal Government--was a question which in most of the State Legislatures elicited strenuous debates; and no where more, than in the Legislature of Virginia. The men of this day have little idea, how strong were the gusts of discussion at that momentous period. "It is scarcely possible," says Judge Story, "to conceive the zeal, and even animosity, with which the opposing opinions were maintained." The dissolution or continuance of the Union, was freely discussed: one party boldly advocating the former, as necessary to prevent the destruction of State-sovereignty; the other party pleading for UNION, as not only the sole cure for the immeasurable ills which were then afflicting the land, but as indispensable to the preservation of Liberty itself, in the several States. And _Union_, it was alleged, could not be preserved but by a more vigorous central government.

Mr. Marshall, not then thirty years old, shared largely in the discussions which shook both the Legislative hall, and the popular assemblies, of Virginia, on this great question. Mr. Madison, with whom he served several years in the House of Delegates, fought "side by side, and shoulder to shoulder" with him, through the contest: and "the friendship, thus formed between them, was never extinguished. The recollection of their co-operation at that period served, when other measures had widely separated them from each other, still to keep up a lively sense of each other's merits. Nothing, indeed, could be more touching to an ingenuous mind, than to hear from their lips, in their latter years, expressions of mutual respect and confidence; or to witness their earnest testimony to the talents, the virtues, and the services of each other."[7]

[Footnote 7: Judge Story.]

It was in these debates, that Mr. Marshall's mind acquired the skill in political discussion, which afterwards distinguished him, and which would of itself have made him conspicuous as a parliamentarian, had not that talent been overshadowed by his renown in a more soberly illustrious, though less dazzling career. Here, too, it was, that he conceived that deep dread of disunion, and that profound conviction of the necessity for closer bonds between the States, which gave the coloring to the whole texture of his opinions, upon federal politics in after life.

The Convention was at length called; and its product, the present Federal Constitution, was submitted for ratification to the States. In most of them, Conventions were likewise called, to adopt or reject it. Mr. Marshall, though the people of his county were decidedly opposed to the new Constitution, and though he avowed on the hustings his determination to support it, was elected to the Virginia Convention by a considerable majority. In that body, he took an effective, if not a leading part. Three able speeches of his, in behalf of the Constitution, appear in Mr. Robertson's report of the Debates: Speeches, seconding with "masculine logic, the persuasive talents of George Nicholas, the animated flow of Governor Randolph, the grave and sententious sagacity of Pendleton, the consummate skill and various knowledge of Madison."[8] After an earnest and powerful struggle of 25 days, the Constitution was agreed to, by a majority of but ten votes--89 to 79. This result is supposed to have been promoted, by the news, received while the Convention sat, that nine states had come to a similar decision. The accession of Virginia to that number, already large enough to give the instrument validity among the adopting states, ensured its complete success; and was hailed by its friends with the liveliest joy.

[Footnote 8: Judge Story.]

Judge Story depicts in vivid colors, the happy effects of the Government thus established, upon our prosperity: and exults over the falsified apprehensions of those who, clinging "with an insane attachment" to the former confederation, and "accustomed to have all their affections concentrated upon the State governments," saw in the new system "but another name for an overwhelming despotism." Undoubtedly, the state of things which preceded the change, was as bad as, with such a people, it could well be. Undoubtedly, the new government did _very_ much, to retrieve our national credit and honor; to make us respected abroad, tranquil and prosperous at home. But still, not _all_ is due to the Government. A people, animated with the spirit of freedom, enlightened enough to see their interests, and enterprising enough to pursue them strenuously,--inhabiting, too, a country not peopled to the extent of a thousandth part of its immense capabilities--would thrive and grow powerful _in spite_ of what almost any government could do to impede their onward march. In the body politic there is, what physicians ascribe to the body natural, a _vis medicatrix Naturæ_, by which the wounds of War, the desolations of Pestilence, and all the ills flowing from the blunders of _charlatan_ statesmen, are healed and made amends for. Few are so bigoted as not to admit, that the self-healing energies of our country have thus at some times prevailed over the hurtful tendencies of the {185} measures adopted by her rulers. There is nevertheless a force and beauty in Judge Story's picture of her happiness, that make it worthy of insertion:

"We have lived," says he, "to see all their fears and prophecies of evil scattered to the winds. We have witnessed the solid growth and prosperity of the whole country, under the auspices of the National Government, to an extent never even imagined by its warmest friends. We have seen our agriculture pour forth its various products, created by a generous, I had almost said, a profuse industry. The miserable exports, scarcely amounting in the times, of which I have been speaking, in the aggregate, to the sum of one or two hundred thousand dollars, now almost reach to forty[9] millions a year in a single staple. We have seen our commerce, which scarcely crept along our noiseless docks, and stood motionless and withering, while the breezes of the ocean moaned through the crevices of our ruined wharves and deserted warehouses, spread its white canvass in every clime; and, laden with its rich returns, spring buoyant on the waves of the home ports; and cloud the very shores with forests of masts, over which the stars and stripes are gallantly streaming. We have seen our manufactures, awakening from a deathlike lethargy, crowd every street of our towns and cities with their busy workmen, and their busier machinery; and startling the silence of our wide streams, and deep dells, and sequestered valleys. We have seen our wild waterfalls, subdued by the power of man, become the mere instruments of his will, and, under the guidance of mechanical genius, now driving with unerring certainty the flying shuttle, now weaving the mysterious threads of the most delicate fabrics, and now pressing the reluctant metals into form, as if they were but playthings in the hands of giants. We have seen our rivers bear upon their bright waters the swelling sails of our coasters, and the sleepless wheels of our steamboats in endless progress. Nay, the very tides of the ocean, in their regular ebb and flow in our ports, seem now but heralds to announce the arrival and departure of our uncounted navigation. We have seen all these things; and we can scarcely believe, that there were days and nights, nay, months and years, in which our wisest patriots and statesmen sat down, in anxious meditation to devise the measures which should save the country from impending ruin."

[Footnote 9: The exports of cotton alone, in the year ending Sept. 30th, 1834, were $49,448,000--_Reviewer_.]

The Constitution being adopted, Mr. Marshall was prevailed on by his countrymen, to serve again in the Legislature till 1792; although the claims of a growing family and a slender fortune had made him wish, and resolve, to quit public life, and devote himself exclusively to his profession. He was wanted there by the friends of the new system, to defend its administration against the incessant attacks made upon it by a powerful and hostile party. This party consisted of those who had resisted the change, because they thought the proposed government too strong. Now that it was adopted, they naturally sought, by construing the grants of power to it with literal strictness, to prevent, as far possible, the dangers to Liberty with which they deemed it pregnant. Their opponents, on the other hand, having long regarded _weakness in the centre_ as the great subject of just apprehension, constantly aimed, by an enlarged and liberal (or, as it has since been called a _latitudinous_) interpretation of those grants of power, to render them in the highest degree counteractive of the centrifugal tendency, which they so much dreaded. This controversy probably raged most hotly in Virginia. It is hard to forbear a smile at the characteristic fact, that "almost every important measure of President Washington's administration was discussed in her Legislature with great freedom, and no small degree of warmth and acrimony."[10] We applaud and honor the stand which Virginia has always taken, as a centinel on the watch-tower of popular liberty and state-sovereignty, to guard against federal usurpation. It is a duty, allotted to the State Legislatures by the enlightened advocates of the Constitution who wrote "The Federalist:" a duty which it were well if her sister states had performed with something like Virginia's fidelity and zeal. But she has indiscreetly suffered this one subject too much to monopolize her attention: and we are amongst those who think this a main reason, why, with a surface and resources the most propitious of all the states to internal improvement, she lags so far behind the rest in works of that kind; and why, with a people pre-eminently _instinct_ with the spirit of liberty, and enjoying unwonted leisure for acquiring knowledge, she has five times as many ignorant sons and daughters, as New York or Massachusetts. She ought to have looked well to her foreign relations, without losing sight of her domestic interests. We hail, with joy, the change which is now taking place in this respect. We trust that she and her statesmen, hereafter, when _all_ attention is claimed for any one point in the vast field of their duties, will adopt the spirit of the reply which Mr. Pope (not Homer) puts into Hector's mouth, when he was advised to fix himself as a guard at one particular gate of Troy:

------"That post shall be my care;
Nor that alone, but _all_ the works of war."

[Footnote 10: Judge Story.]

From 1792 to 1795, Mr. Marshall devoted himself exclusively and successfully to his profession. Washington's Reports, shew him to have enjoyed an extensive practice in the Court of Appeals of Virginia. During this time, also, he did not withdraw himself from politics so entirely, but that he took a prominent part at public meetings, in support of Gen. Washington's Proclamation of Neutrality. He advocated this measure, orally and in writing: and Resolutions approving it, drawn up by him, were adopted by a meeting of the people of Richmond. In 1795, when Jay's Treaty was the absorbing theme of bitter controversy, Mr. Marshall was again elected to the House of Delegates, "not only without his approbation, but against his known wishes." Virginia, as usual, was the _Flanders_ of the war. Her popular meetings, and her Legislature, rung with angry discussions. Even the name of Washington could not screen the treaty from reprobation. It was denounced at a meeting in Richmond, at which Chancellor Wythe presided, as _insulting, injurious, dangerous, and unconstitutional_: but the same citizens, at a subsequent meeting, were prevailed upon by a masterly speech of Mr. Marshall, to adopt resolutions of a contrary tenor, "by a handsome majority."[11] Lest his _popularity_ might suffer, he was urged by his friends not to engage in any Legislative debates upon the obnoxious Treaty. He answered, that he would make no movement to excite such a debate; but if others did so, he would assert his opinions at every hazard. The opposition party soon introduced condemnatory resolutions. Among other arguments against the treaty, it was alleged, that the executive could not, constitutionally, make a commercial treaty; since it would infringe the power given to Congress, to _regulate commerce_: and this was relied upon as a favorite and an unanswerable position. "The speech of Mr. Marshall on this occasion," says Judge {186} Story, "has always been represented as one of the noblest efforts of his genius. His vast powers of reasoning were displayed with the most gratifying success. He demonstrated, not only from the words of the Constitution and the _universal practice of nations_,[12] that a commercial treaty was within the scope of the constitutional powers of the executive; but that this opinion had been maintained and sanctioned by Mr. Jefferson, by the Virginia delegation in Congress, and by the leading members of the Convention on both sides. The argument was decisive. The constitutional ground was abandoned; and the resolutions of the assembly were confined to a simple disapprobation of the treaty in point of expediency.... The fame of this admirable argument spread through the union. Even with his political enemies, it enhanced the estimate of his character; and it brought him at once to the notice of some of the most eminent statesmen, who then graced the councils of the nation."

[Footnote 11: Judge Story.]

[Footnote 12: We confess a little surprise, at seeing, here, any deduction of authority to the American Executive "_from the practice of other nations_." If we mistake not, a certain famous _Protest_ of a certain President, was censured mainly for deducing power to its author from that source.--_Reviewer_.]

Being called to Philadelphia in 1796, as counsel in an important case before the Supreme Court of the United States, he became personally acquainted with many distinguished members of Congress. He expressed himself delighted with Messrs. Cabot, Ames, Sedgwick, and Dexter of Massachusetts, Wadsworth of Connecticut, and King of New York. To these, his great speech on the treaty could not fail to recommend him: and (as he says in a letter) "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 [for the treaty] would be seriously opposed in Congress." They _were_ opposed; and passed only after a stormy debate of several weeks: and passed even then, with a declaration of a right, in Congress, to withhold them if it pleased. President Washington about this time offered him the post of Attorney General of the United States; which he declined, as interfering with his lucrative practice. But he continued in the Virginia Legislature. There, federal politics occupied the usual share of attention. A resolution being moved, expressing confidence in the virtue, patriotism, and wisdom of Washington, a member proposed to strike out the word _wisdom_. "In the debate," says the Chief Justice himself, "the whole course of the Administration was reviewed, and the whole talent of each party brought into action. Will it be believed, that the word was retained by a very small majority? A very small majority of the Virginia Legislature, acknowledged the wisdom of General Washington!"

The appointment of Minister to France, as successor to Mr. Monroe, was offered him by the President, and declined. The French Government, however, refusing to receive General Pinckney, who was appointed in his stead, Messrs. Marshall, Pinckney, and Gerry, were sent by President Adams as envoys extraordinary to that country. The Directory refused to negotiate. But though the direct object of the embassy was thus foiled, much was effected in showing France to be in the wrong, by the official papers which the envoys addressed to her minister of foreign relations--the since famous Talleyrand: "Models of skilful reasoning, clear illustration, accurate detail, and urbane and dignified moderation."[13] "They have always been attributed to Mr. Marshall. They bear internal marks of it. We have since become familiar with his simple and masculine style,--his direct, connected, and demonstrative reasoning--the infrequency of his resort to illustrations, and the pertinency and truth of the few which he uses--the absence of all violent assertion--the impersonal form of his positions, and especially with the candor, as much the character of the man as of his writings, with which he allows to the opposing argument its fair strength, without attempting to elude it, or escape from it, by a subtlety. Every line that he has written, bears the stamp of sincerity; and if his arguments fail to produce conviction, they never raise a doubt, nor the shadow of a doubt, that they proceed from it.

[Footnote 13: Judge Story.]

"The impression made, by the despatches of the American ministers was immediate and extensive. Mr. Marshall arrived in New York on the 17th of June, 1798. His entrance into this city on the 19th, had the eclat of a triumph. The military corps escorted him from Frankford to the city, where the citizens crowded his lodgings to testify their veneration and gratitude. Public addresses were made to him, breathing sentiments of the liveliest affection and respect. A public dinner was given to him by members of both houses of Congress 'as an evidence of affection for his person, and of their grateful approbation of the patriotic firmness with which he sustained the dignity of his country during his important mission;' and the country at large responded with one voice to the sentiment pronounced at this celebration, 'Millions for defence, but not a cent for tribute.'"[14]

[Footnote 14: Mr. Binney.]

Once more, he resumed his practice of the Law, with renewed determination to leave it no more. He was, however, so urgently entreated by General Washington (who sent for him to Mount Vernon for the purpose) to become a candidate for Congress, that he did so; and was elected, in 1799, after a severe contest. Whilst a candidate, President Adams offered him a seat upon the Bench of the Supreme Court; but he declined it. He had not been three weeks in Congress, when, by a fortune as striking as it was mournful, it became his lot to announce to the House, the death of Washington. Never could such an event have been told in language more impressive or more appropriate.

"Mr. Speaker--The melancholy event, which was yesterday announced with doubt, has been rendered but too certain. Our Washington is no more. The hero, the patriot, and the sage of America; the man on whom in times of danger every eye was turned, and all hopes were placed, lives now, only in his own great actions, and in the hearts of an affectionate and afflicted people."

Having briefly alluded to the achievements and services of the deceased, he concluded by offering suitable resolutions, for honoring "the memory of the {187} man, first in war, first in peace, and first in the hearts of his countrymen." The resolutions had been drawn by General Henry Lee, whom a temporary absence hindered from presenting them. With characteristic modesty, Mr. Marshall, in the account of this transaction given by him as biographer of Washington, omits all mention of his own name; saying only, that "_a member_ rose in his place," &c. That House of Representatives abounded in talents of the first order for debate: and none were more conspicuous than those of John Marshall. Indeed, where the law or constitution was to be discussed, "he was confessedly the first man in the House. When he discussed them, he exhausted them: nothing more remained to be said; and the impression of his argument effaced that of every one else."... "Upon such topics, however dark to others, his mind could by its own clear light

------'sit in the centre, and enjoy bright day.'"[15]

[Footnote 15: Mr. Binney.]

His speech upon the case of Jonathan Robbins, was a striking example. This man, a subject of Great Britain, had committed a murder on board a British frigate, and then fled to the United States. Being demanded by the British Government, President Adams caused him to be surrendered, under a clause in Jay's treaty. The act was furiously assailed by the opposition: and a resolution of censure was introduced into the House of Representatives by Mr. Livingston. The speech of Mr. Marshall on this occasion was perhaps one of the most masterly ever delivered in Congress. "It has all the merits, and nearly all the weight of a judicial sentence."[16] "It may be said of that speech, as was said of Lord Mansfield's celebrated Answer to the Prussian Memorial, it was _Reponse sans replique_--an answer so irresistible, that it admitted of no reply. It silenced opposition; and settled then, and forever, the points of national law, upon which the controversy hinged."[17]

[Footnote 16: Ib.]

[Footnote 17: Judge Story.]

He was not in Congress when the famous _Sedition Law_ passed: but he had the merit of voting to repeal the most obnoxious section of it; in opposition to all those, with whom he generally concurred. In May, 1800, he was appointed Secretary of War: but before his entry upon the duties of that office, a rupture occurring between the President and Col. Pickering, he was made Secretary of State in lieu of the latter. It is honorable both to him and his predecessor, that the delicate position in which they stood towards each other, did not interrupt their harmony: but they retained, while both lived, a warm and cordial friendship. Even during the few months that he held this office, Mr. Marshall evinced great ability, in discussing several important questions between our country and England. "It is impossible to imagine a finer spirit, more fearless, more dignified, more conciliatory, more true to his country, than animates his instructions to Mr. King,"[18] the American Minister in London. "His despatch of September 20th, 1800, is a noble specimen of the first order of State papers, and shows the most finished adaptation of parts for the station of an American Secretary of State."[19]

[Footnote 18: Mr. Binney.]

[Footnote 19: Ib.]

On the 31st of January, 1801, he was appointed Chief Justice of the Supreme Court of the United States: "not only without his own solicitation, (for he had in fact recommended another for the office,) but by the prompt and spontaneous choice of President Adams, upon his own unassisted judgment. The nomination was unanimously confirmed by the Senate."[20]

[Footnote 20: Judge Story.]

It is a remarkable, yet not an extraordinary fact, that his induction into that high office which he so illustriously filled, is precisely the juncture in his life at which, for the purposes of striking narrative, his biography ends. That part of his career, the most signalized by enduring monuments of his intellectual power, and the most adorned by the winning graces of his daily actions, is precisely that in which it is hardest to find glaring incidents, that stand forth boldly on the page, and rivet the reader's mind. "Peace" indeed, as Milton said to Cromwell,--

"Peace hath her victories
No less renowned than War;"

and few men have achieved more signal ones, than he who may be said to have built up a national Jurisprudence for the Union, by the strength of his own genius: but such triumphs ring not in the common ear, and glitter not in the common eye. Even History often forgets to chronicle them in her bloodstained page: that page, which is too mere a picture of crimes and misery--where the peaceful and innocent crowd never appear, but give place to the profligate votaries of perverted ambition--and which, like tragedy, is languid and distasteful, unless enlivened by atrocious deeds, and horrid sufferings.[21] We shall not attempt, then, to protract our account of the last thirty-five years of Judge Marshall's life. It was spent in the diligent, and upright, as well as able discharge of his official duties; sometimes presiding in the Supreme Court at Washington, sometimes assisting to hold the _Circuit Federal Courts_, in Virginia, and North Carolina. His residence was in Richmond, whence it was his frequent custom to walk out, a distance of three or four miles, to his farm, in the county of Henrico. He also had a farm in his native county, Fauquier; which he annually visited, and where he always enjoyed a delightful intercourse with numerous relations and friends. Twice, in these thirty-five years, he may be said to have mingled in political life, but not in party politics.

[Footnote 21: "En effet l'histoire n'est que le tableau des crimes et des malheurs: la foule des hommes innocents et paisibles disparait toujours sur ces vastes théâtres: les personnages ne sont que des ambitieux pervers. Il semble que l'histoire ne plaise que comme la tragedie, qui languit si elle n'est animée par les passions, les forfaits, et les grandes infortunes."--_L'Ingenu, Ch. 10_.]

In 1828, he was delegated, with others from the city of Richmond, to a convention held in Charlottesville, for the purpose of devising a proper system of internal improvements, for the State; to be recommended to the Legislature: and he took a becoming part in the deliberations of that enlightened body.

In 1829, he was chosen to represent the city in the Convention which met in October of that year, to revise and amend the State Constitution. Here was exhibited a spectacle, one of the most affecting in our day, of three men--Madison, Monroe, and Marshall,--who having assisted in establishing the liberties and creating the government of their country, and having filled her highest stations, were now consulting with a later generation, upon the means of rendering that government {188} purer, more durable, and more productive of happiness. Mr. Monroe was nominated by Mr. Madison as President of the Convention; and, having been unanimously chosen, was conducted by Mr. Madison and Mr. Marshall to the chair. During the three months of the session, Judge Marshall repeatedly engaged in debate: displaying still that power of reasoning, with that bland courtesy of manner, which had always distinguished him. His voice was now become extremely feeble; so that those who sat far off could not hear him: no sooner therefore did he rise, than the members would press towards him, and strain with outstretched necks and eager ears, to catch his words. The basis of representation, and the structure of the judiciary, were the subjects upon which he chiefly spoke. The difficulties of adjusting the former, so as to satisfy both the east and the west--the irritated feelings which began to appear on both sides--and the imminent dread which the patriot felt, of a division of the state--will not soon be forgotten. It was when a _compromise_ of the difference was proposed, that the Chief Justice displayed his greatest power. Towards the close of a speech, which was at the time regarded as an unrivalled specimen of lucid and conclusive reasoning, he said, he "hailed that auspicious appearance, with all the joy with which an inhabitant of the polar regions hails the re-appearance of the sun, after his long absence of six tedious months." It was of a position maintained by him in this speech, and which, an opposing orator said, had been _overthrown_ by Mr. ---- of Augusta, that John Randolph declared, "The argument of the Chief Justice is unshaken, and unanswerable. It is as strong as the fortress of Gibraltar. Sir, the fortress of Gibraltar would be as much injured by _battering it with a pocket pistol_, as that argument has been affected by the abortive and puny assault of the gentleman from Augusta." The great Roanoke orator's esteem and admiration for the Chief Justice (although, on federal politics, they widely differed) amounted almost to idolatry. An amicable contest between them one day, on the floor of the Convention, furnished him an occasion for paying to the latter a tribute as beautiful, as it was simple and just. The Chief Justice, thinking that some remark of his had been understood by Mr. Randolph as personally unkind, arose with earnestness to assure him that it was not so intended. Mr. R. as earnestly strove to quiet Judge M.'s uneasiness, by assuring him that he had not understood the remark as offensive. In their eagerness, the one to apologize, and the other to show that no apology was necessary, they interrupted each other two or three times: at length Mr. R. effectually silenced his friend, by saying, "I know the goodness of his heart too well to have supposed it possible that he could have intended to give me pain. Sir, I believe, that like 'My Uncle Toby,' _he would not even hurt a fly_."

A visiter in Richmond during the Convention, being at the market one morning before sunrise, saw the Chief Justice of the United States, in the blue-mixed woollen stockings and the plain black suit (far from superfine) which he usually wore, striding along between the rows of meat and vegetables, catering for his household; and depositing his purchases in a basket, carried by a servant. But it was his frequent custom to go on this errand, unattended; and nothing was more usual, than to see him returning from market at sunrise, with poultry in one hand, and a basket of vegetables in the other. So beautifully, by a simplicity which pervaded his words, his actions, his whole life, did he illustrate the character of a republican citizen and magistrate!

No man more highly relished social, and even convivial enjoyments. He was a member of the club, which for 48 summers has met once a fortnight near Richmond, to pitch quoits and mingle in relaxing conversation: and there was not one more delightedly punctual in his attendance at these meetings, or who contributed more to their pleasantness: scarcely one, who excelled him in the manly game, from which the "Quoit-Club" drew its designation. He would hurl his iron ring of two pound's weight, with rarely erring aim, fifty-five or sixty feet; and, at some _chef-d'œuvre_ of skill in himself or his _partner_, would spring up and clap his hands, with all the light-hearted enthusiasm of boyhood. Such is the old age, which follows a temperate, an innocent, and a useful life! We extract from the American Turf Register of 1829, the following entertaining account of this Club.

During a recent visit to Richmond, in Virginia, I was invited to a "Barbecue Club," held under the shade of some fine oaks, near "Buchanan's Spring," about a mile distant from the town. I there met with about thirty of the respectable inhabitants of Richmond, with a few guests. The day was a fine one, and the free and social intercourse of the members rendered it peculiarly pleasant.

This Club is probably the most ancient one of the sort in the United States, having existed upwards of forty years. It originated in a meeting, every other Saturday, from the first of May until the month of October, of some of the Scotch merchants who were early settlers in that town. They agreed each to take out some cold meats for their repast, and to provide a due quantity of drinkables, and enjoy relaxation in that way after the labors of the week. They occasionally invited some others of the inhabitants, who finding the time passed pleasantly, proposed in the year 1788 to form a regular club, consisting of thirty members, under a written constitution, limiting their expenses each day by a sort of sumptuary law which prohibited the use of wine and porter.

The Virginians, you know, have always been great _limitarians_ as to constitutional matters. Whenever a member died or resigned, (but there have been very few resignations,) his place was filled by balloting for a new one, who could not be elected without the concurrence of two-thirds of the club. It is said that for many years no vacancy occurred, and a sort of superstitious sentiment was prevalent, that to become a member of the club, was to insure longevity. The Arch Destroyer, however, at length appeared in all his strength, and made such havoc, that only one of the original members (the venerable Chief Justice of the United States,) is now surviving.

The club consists of judges, lawyers, doctors, and merchants, and the Governor of the Commonwealth has a general invitation when he enters into office. What gave additional interest to this body, some years ago, was the constant attendance (as honorary members) of two venerable clergymen--one of the Episcopal, and the other of the Presbyterian church, who joined in the innocent pastime of the day. They were pious and exemplary men, who discerned no sin in harmless gaiety. Quoits and backgammon are the only games indulged in, and one of the clergymen was for many years "cock of the walk" in throwing the _discus_. They are gone to their account, and have left a chasm that has not been filled.

Some years ago, an amendment was made to the constitution, which admits the use of porter. Great opposition was made to this innovation, and the destruction of the club was predicted as the consequence. The oppositionists, however, soon became as great consumers of malt and hops as their associates, and now they even consent to the introduction of wine at the last meeting of every year, provided there be "a shot in the locker." The members each advance ten dollars to the treasurer at the beginning of the season, and every member is entitled to invite any {189} strangers as guests, on paying into the general fund one dollar for each; while the caterers of the day, consisting of two members in rotation, preside, and have the privilege of bringing each a guest (either citizen or non-resident,) at free cost. On the day I was present, dinner was ready at half past three o'clock, and consisted of excellent meats and fish, well prepared and well served, with the vegetables of the season. Your veritable gourmand never fails to regale himself on his favorite _barbecue_--which is a fine fat pig, called "shoot," cooked on the coals, and highly seasoned with cayenne--a dessert of melons and fruits follows, and punch, porter and toddy are the table liquors; but with the fruits comes on the favorite beverage of the Virginians, mint julep, in place of wine. I never witnessed more festivity and good humor than prevail at this club. By the constitution, the subject of politics is forbidden, and each man strives to make the time pleasant to his companions. The members think they can offer no higher compliment to a distinguished stranger, than to introduce him to the club, and all feel it a duty to contribute to his entertainment. It was refreshing to see such a man as Chief Justice Marshall, laying aside the reserve of his dignified station, and contending with the young men at a game of quoits, with all the emulation of a youth.

Many anecdotes are told of occurrences at these meetings. Such is the partiality for the Chief Justice, that it is said the greatest anxiety is felt for his success in the game by the bystanders; and on one occasion an old Scotch gentleman was called on to decide between his quoit and that of another member, who after seemingly careful measurement, announced, "Mister _Mareshall_ has it a _leattle_," when it was visible to all that the contrary was the fact. A French gentleman (Baron Quenet,) was at one time a guest, when the Governor, the Chief Justice, and several of the Judges of the High Court of Appeals, were engaged with others, _with coats off_, in a well-contested game. He asked, "if it was possible that the dignitaries of the land could thus intermix with private citizens," and when assured of the fact, he observed, with true Gallican enthusiasm, that "he had never before seen the real beauty of republicanism."

In Judge Marshall's yearly visits to Fauquier, where the proper implements of his favorite sport were not to be had, he still practised it among his rustic friends, with _flat stones_ for quoits. A casual guest at a _barbecue_ in that county--one of those rural entertainments so frequent among the country people of Virginia--soon after his arrival at the spot, saw an old man emerge from a thicket which bordered the neighboring brook, carrying as large a pile of these flat stones as he could hold between his right arm and his chin: he stepped briskly up to the company, and threw down his load among them, exclaiming, "There! Here are quoits enough for us all!" The stranger's surprise may be imagined, when he found that this plain and cheerful old man was the Chief Justice of the United States! Nor was the _bonhommie_, with which he could descend to the level of common life, restricted to his intercourse with men and women: he was often a pleasing companion even to children. One, whose first recollection of him referred to his triumphal entry (for such 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, describes him as "remarkably fond of boys' company--always chatty--and always pleasant." The reminiscent, having been transferred to Washington in 1800, while Mr. M. was Secretary of State, says, "again 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 accessible, and always with a smile on his countenance when I handed him the 'Federalist.' His kindness of manner won my affections; and I became devotedly attached to him."

Even from this early period the reminiscent may date the commencement of an intercourse and correspondence with the Chief Justice, which endured uninterruptedly for many years, until the period of his lamented death. The unaffected and childlike simplicity of manner, action, and thought which pervaded, as the sunlight pervades the atmosphere, every moment of this truly great man's existence, and which, indeed, formed, in no little degree, the basis of his greatness, sufficed to render the intercourse of which we speak, an intercourse of the most kindly, unembarrassed, and intimate nature; and one which afforded opportunities for a more particular knowledge of the strictly private and familiar habitudes of the man, than has fallen to the lot of many who, perhaps, were better entitled to his confidence. The reminiscent would here acknowledge, not only with gratitude, but with pride, the innumerable, yet unobtrusive acts of generous assistance and advice, for which he is indebted to the friendship of Chief Justice Marshall.

When, to all these engaging traits of character, we add that his charitable benefactions were as large as his mind, and as unostentatious as his life; and that in his dealings he was so scrupulously just, as always to prefer his own loss to the possibility of his wronging another; it can be no wonder, that despite the unpopularity of his federo-political opinions, he was the most beloved and esteemed of all men in Virginia.

The influence of Judge Marshall upon the decisions of the Supreme Court, in cases requiring a determination of the limits set by the Constitution to federal power, will be deemed salutary or pernicious, according as the mind which contemplates it is biassed towards the one or the other school of opinions on that subject--towards the _strict_, or towards the _liberal_ (what its opponents term the _licentious_) construction. Having been profoundly--perhaps exaggeratedly--impressed with a dread of the evils attending a feeble government for the Union, he had advocated the new Constitution originally, and maintained the _liberal_ interpretation of it afterwards, as indispensable to the integrity and wholesome action of our system. Opinions which he had thus held for thirteen years, and which had become fixed more and more deeply in his mind by his numberless able vindications of them, he could not be expected to throw aside when he ascended the Bench. They pervaded his decisions there; and such was the influence of his gigantic intellect, that, although, as Chief Justice, his vote had no more legal authority than that of any other Judge, and although most of his associates were deemed, at their appointments, maintainers of the _strict construction_,--the Supreme Court took its tone from him; and in almost every instance where the controversy turned upon the boundaries between _federal_ and _state_ authority, as fixed by the Constitution, its determination tended to enlarge the former, and to circumscribe the latter. Never, probably, did any judge, who had six associates equal to himself in judicial authority, so effectually stamp their adjudications with the impress of his own mind. This may be read, in the generous pleasure with which the best and ablest[22] of those associates dwells upon the {190} inestimable service done to the country, in establishing a code of Constitutional Law so perfect, that "His proudest epitaph may be written in a single line--Here lies the Expounder of the Constitution of the United States." It may be read in the glowing page, where Mr. Binney, resolving the glory of the Court in having "explained, defended and enforced the Constitution," into the merits of its presiding judge, declares himself "lost in admiration of the man, and in gratitude to Heaven for his beneficent life." It may be read in the many volumes of Reports, where, whensoever a question of constitutional law was to be determined, the opinion of Judge Marshall is found, almost without exception, to be the opinion of the Supreme Court.

[Footnote 22: Judge Story.]

We shall make but one more extract from Mr. Binney's admirable Eulogy.

He was endued by nature with a patience that was never surpassed;--patience to hear that which he knew already, that which he disapproved, that which questioned himself. When he ceased to hear, it was not because his patience was exhausted, but because it ceased to be a virtue.

His carriage in the discharge of his judicial business, was faultless. Whether the argument was animated or dull, instructive or superficial, the regard of his expressive eye was an assurance that nothing that ought to affect the cause, was lost by inattention or indifference; and the courtesy of his general manner was only so far restrained on the Bench, as was necessary for the dignity of office, and for the suppression of familiarity.