C-NRLF 
 
 375 77fl 
 
LIBRARY OF THE UNIVERSITY OF CALIFORNIA 
 
 LIBRARY OF THE UNIVERSITY OF CALIFORNIA 
 
E UNIVERSITY OF CALIFORNIA 
 
 QJf 
 
 LIBRARY OF THE UNIVERSITY 
 
 s ^m>m^6> 
 
 _ Y <L>< Y > 
 
 6 ]-~-~ ^"^AJ 
 
 E UNIVERSITY OF CALIFORNIA 
 
 QJS 
 
 LIBRARY OF THE UNIVERSITY 
 
 ^ A ^r ^ ^ ^ 
 
 <C^^^g js 
 
 W VCy^ ~^4 a= ^ 
 
 >/A)7? ^-^ a ; 6 
 
: ORNIA 
 
 LIB 
 
 : ORNIA 
 
 LI 
 
JOHN MARSHALL 
 
 BY 
 
 JAMES BRADLEY THAYER 
 
 BOSTON AND NEW YORK 
 HOUGHTON, MIFFLIN AND COMPANY 
 , Cambri&0e 
 
 1904 
 

 COPYRIGHT, igoi, BY JAMKS BRADLEY THAYER 
 ALL RIGHTS RESERVED 
 
PREFATORY NOTE 
 
 THE writer has drawn with entire freedom 
 from an address delivered by him at Cam 
 bridge on February 4, 1901, before the Har 
 vard Law School and the Bar Association 
 of the City of Boston, and from an article 
 on John Marshall in the Atlantic Monthly 
 for March, 1901. J. B. T. 
 
 CAMBRIDGE, March 30, 1901. 
 
 227635 
 
CONTENTS 
 
 PAQB 
 I. HlS LIFE BEFORE BECOMING CHIEF JuS- 
 
 TICE ; HIS PERSONAL CHARACTERISTICS . 1 
 II. ARGUMENTS AND SPEECHES; LIFE OF 
 WASHINGTON ; RELATIONS WITH JEFFER 
 SON ........ 39 
 
 in. THE BEGINNINGS OF THE CHIEF JUSTICE S 
 CAREER ; AMERICAN CONSTITUTIONAL 
 LAW; MARBURY v. MADISON . . 54 
 IV. MARSHALL S CONSTITUTIONAL OPINIONS . 82 
 V. THE WORKING OF OUR SYSTEM OF CONSTI 
 
 TUTIONAL LAW ..... 102 
 
 VL LETTERS OF MARSHALL . . . .111 
 
 VII. MARSHALL AS A CITIZEN AND A NEIGHBOR 123 
 His LAST DAYS ...... 147 
 
 The portrait is from a miniature by St. Memin. 
 
JOHN MARSHALL 
 
 CHAPTER I 
 
 HIS LIFE BEFORE BECOMING CHIEF JUS 
 TICE ; HIS PERSONAL CHARACTERISTICS 
 
 IN beginning his " Life of Washington," 
 Chief Justice Marshall states that Wash 
 ington was born in 1732, "near the banks 
 of the Potowmac," in Westmoreland County, 
 Virginia ; mentions his employment by Lord 
 Fairfax, the proprietor of the Northern 
 Neck, as surveyor of his estates in the west 
 ern part of that region ; and adds that, in 
 the performance of these duties, " he ac 
 quired that information respecting vacant 
 lands, and formed those opinions concerning 
 their future value, which afterwards contrib 
 uted greatly to the increase of his private 
 fortune." 
 
2 : JOHN MARSHALL 
 
 Thomas Marshall, the father of the Chief 
 Justice, two years older than Washington, 
 was also born in Westmoreland County, was 
 a schoolmate of Washington, served with 
 him both as surveyor of the Fairfax estates, 
 and soon afterwards, as an officer in the 
 French and Indian wars ; and he, too, as 
 time passed, found like advantage from his 
 experience as a surveyor. 
 
 In 1753, Thomas Marshall was made 
 agent of Lord Fairfax in the management 
 of his estates. In the next year, he married 
 Mary Isham Keith, daughter of a Scotch 
 clergyman, whose wife was a descendant of 
 William Eandolph, of Turkey Island, the 
 ancestor of the famous Virginia family of 
 that name. Their son, John Marshall, the 
 oldest of fifteen children, was born on Sep 
 tember 24, 1755, in what was afterwards 
 Fauquier County, at a little settlement then 
 known as Germantown, now Midland, on 
 the Southern Kailroad, a few miles south of 
 Maiiassas. That was the year of Braddock s 
 defeat, and Thomas Marshall, like Washing 
 ton, was in the service, as an officer. 
 
BEFORE BECOMING CHIEF JUSTICE 3 
 
 In Marshall s early childhood, his father s 
 household, situated in a frontier county, 
 must have been agitated with the dreadful 
 rumors, anxieties, and terrors of the troubles 
 with the French and Indians. " So late," 
 he tells us in the " Life of Washington," " as 
 the year 1756, the Blue Ridge was the 
 northwestern frontier ; and [Virginia] found 
 immense difficulty in completing a single 
 regiment to protect the inhabitants from the 
 horrors of the scalping-knife, and the still 
 greater horrors of being led into captivity 
 by savages who added terrors to death by 
 the manner of inflicting it." It was not 
 until two years later that the capture of 
 Fort Duquesne relieved Virginia from the 
 frightful ravages that laid waste the region 
 just west of the Blue Ridge. 
 
 When John Marshall was ten years old 
 or more, his father left the level country and 
 poor soil of eastern Fauquier, for the higher 
 and more fertile region in the western part 
 of the county, just under the Blue Ridge. 
 At Midland all they can show you now, 
 relating to Marshall, is a small, rude heap 
 
4 JOHN MARSHALL 
 
 of bricks and rubbish, what is left of 
 the house where he was born ; and children 
 on the farm reach out to you a handful of 
 the bullets with which that sacred spot 
 and the whole region were thickly sown, 
 before a generation had passed, after his 
 death. 
 
 Marshall s education was got from his 
 father, from such teachers as the neighbor 
 hood furnished, and, for about a year, at a 
 school in Westmoreland County, where his 
 father and George Washington had at 
 tended, and where James Monroe was his 
 own schoolmate. But most he owed to his 
 father, a man of good stock, of enter 
 prise, experience, strong character and sense, 
 himself of no mean education, who, per 
 sonally, took great pains with the training of 
 his children. Marshall admired his father, 
 and declared him to be a far abler man than 
 any of his sons. From him and the teachers 
 provided for him his son got a good knowledge 
 of English history, literature, and poetry, and 
 a fair acquaintance with the classics. 
 
 All Marshall s later youth was passed in 
 
BEFORE BECOMING CHIEF JUSTICE 5 
 
 the mountain region of Fauquier County, 
 under the Blue Ridge. Judge Story de 
 clared that it was to the hardy, athletic hab 
 its of his youth among the mountains, oper 
 ating, we may well conjecture, upon a happy 
 physical inheritance, " that he probably 
 owed that robust and vigorous constitution 
 which carried him almost to the close of his 
 life with the freshness and firmness of man 
 hood." 
 
 The house that Marshall s father built at 
 Oakhill is still standing, an unpretending, 
 small, frame building, having connected with 
 it now, as a part of it, another house built 
 by Marshall s son Thomas. At one time 
 the farm comprised an estate of six thousand 
 acres. 1 Since 1865 it has passed out of the 
 hands of the family. It is beautifully placed 
 on high, rolling ground, looking over a great 
 stretch of fertile country, and along the 
 chain of the Blue Ridge, close by. To this 
 
 1 The Chief Justice seems to have inherited and accu 
 mulated a considerable estate. By his will he gave to 
 each of his gTandsons named John a thousand acres of 
 land. The Green Bag, viii. 4. He also had been a sur 
 veyor. Ib. 480. 
 
6 JOHN MARSHALL 
 
 region, where his children and kindred lived, 
 about a hundred miles from Richmond, Mar 
 shall delighted to resort in the summer, all 
 his life long. In the autumn of 1807, after 
 the Burr trial, he writes to a friend, " The 
 day after the commitment of Colonel Burr 
 for a misdemeanor, I galloped to the moun 
 tains." " I am on the wing," he tells Judge 
 Story in 1828, " for my friends in the upper 
 country, where I shall find rest and dear 
 friends, occupied more with their farms than 
 with party politics." 
 
 When Marshall was about eighteen years 
 old he began to study Blackstone ; but he 
 quickly dropped it, for the troubles with 
 Great Britain thickened, and, like his neigh 
 bors, he prepared for fighting. 
 
 He seems to have found a copy of Black- 
 stone in his father s house, as he had found 
 there much other sterling English literature. 
 It was then a new book, but already famous. 
 Published in England in 1765-69, a thou 
 sand copies had been taken in this country ; l 
 and just now the first American edition was 
 
 1 Hammond s Blackstone, vol. i., pp. viii. xxv. 
 
BEFORE BECOMING CHIEF JUSTICE 7 
 
 out (Philadelphia, 1771-72), in which the 
 list of subscribers, headed by the name 
 of "John Adams, barrister at law, Boston," 
 had also that of " Captain Thomas Mar 
 shall, Clerk of Dunmore County." Dun- 
 more County, now Shenandoah, was then a 
 very new county, just over the Blue Ridge 
 from Fauquier ; and it is believed that there 
 was but one Captain Thomas Marshall in 
 those parts. 
 
 The earliest personal description of Mar 
 shall that we have belongs to this period. 
 It is preserved in Horace Binney s admira 
 ble address at Philadelphia, after Marshall s 
 death. He gives it from the pen of an eye 
 witness, a " venerable kinsman " of Mar 
 shall. News had come, in May, 1775, of / 
 the fighting at Concord and Lexington. 
 The account shows us the youth, as lieuten 
 ant, drilling a company of soldiers in Fau 
 quier County : 
 
 " 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 cir- 
 
8 JOHN MARSHALL 
 
 cle, and within that, eyes dark to blackness, 1 
 strong and penetrating, beaming with intel 
 ligence and good nature; an upright fore 
 head, rather low, was terminated in a hori 
 zontal line by a mass of raven-black hair, of 
 unusual thickness and strength. The fea 
 tures of the face were in harmony with this 
 outline, and the temples fully developed. 
 The residt of this combination was interest 
 ing and very agreeable. The body and 
 limbs indicated agility rather than strength, 
 in which, however, he was by no means de 
 ficient. He wore a purple or pale blue 
 hunting-shirt, and trousers of the same ma 
 terial fringed with white. A round black 
 hat, mounted with the buck s tail for a cock 
 ade, 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. . . . 
 
 1 Marshall s eyes are often spoken of as black. In 
 fact, they were brown. 
 
BEFORE BECOMING CHIEF JUSTICE 9 
 
 " 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 about him, he would tell them what 
 he understood about it. The circle was 
 formed, and he addressed the company for 
 something like an hour. 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." 
 
 " This," adds Mr. Binney, " is a portrait, 
 to which in simplicity, gayety of heart, and 
 manliness of spirit, in everything but the 
 symbols of the youthful soldier, and one or 
 two of those lineaments which the hand of 
 time, however gentle, changes and perhaps 
 improves, he never lost his resemblance." 
 
 Marshall accompanied his father to the 
 war as a lieutenant, and in a year or two 
 became a captain. In leaving the father 
 here, it may be said that three of his sons 
 were with him in the war, and that he him 
 self served with gallantry and distinction as 
 a colonel. In 1780, he was at the South 
 
10 JOHN MARSHALL 
 
 with General Lincoln, and being included in 
 the surrender of that officer and on parole, 
 visited Kentucky, not yet a State. After a 
 few years he removed there with the younger 
 part of his family, leaving Oakhill, as it 
 seems, in the hands of his son John. He 
 died in Kentucky in 1806, having survived 
 to witness the successive honors of his son 
 culminate in his becoming Chief Justice of 
 the United States. 1 
 
 1 It may be added that Thomas Marshall, father of 
 the Chief Justice, was the son of John Marshall, called 
 " of the Forest," from the name of his place in West 
 moreland County. Of this John it is said, in a little 
 autobiography of the Chief Justice of some five hundred 
 words, preserved in Mr. Justice Gray s valuable oration 
 at Richmond, on February 4, 1901, that his " parents mi 
 grated from Wales and settled in the county of West 
 moreland in Virginia." The will of " Thomas Marshall ? 
 carpenter," proved May 31, 1704, describing himself as of 
 Westmoreland County, is printed in the Virginia Maga 
 zine of History, ii. 343, 344 ; and it is there stated in 
 a note that this Thomas "was the first of his race in 
 America." On the other hand, we are told by an intelli 
 gent writer in Appleton s Cyclopaedia of American Bio 
 graphy, and elsewhere, that the father of " John of the 
 Forest " was Thomas, born in Virginia in 1655, who died 
 in 1704 ; and that it was his father, John, a captain of 
 cavalry in the service of Charles I., who emigrated to 
 Virginia about 1650. 
 
BEFORE BECOMING CHIEF JUSTICE 11 
 
 It was in the autumn of 1775 that Mar 
 shall, as lieutenant in a regiment of minute- 
 men, of which his father was major, marched 
 down through the country to the seaboard 
 to resist Lord Dunmore r s aggressions. They 
 were clothed, we are told, in green home 
 spun hunting-shirts, having the words " Lib 
 erty or Death " in large letters on the breast, 
 with bucks tails in their hats, and toma 
 hawks and scalping-knives in their belts. 
 The enemy at Norfolk feared, it is said, for 
 their scalps, but they lost none. 1 
 
 He was thus in the first fighting in Vir 
 ginia, in the fall of 1775, at Norfolk ; after 
 wards he served in New Jersey, Pennsyl 
 vania, and New York; and again in Vir 
 ginia toward the end of the war. He was 
 at Valley Forge, in the fighting at the 
 Brandywine, Germantowii, Monmouth, Stony 
 Point, and Paulus Hook, between 1776 and 
 1779. He served often as judge advocate, 
 and in this way was brought into personal 
 relations with Washington and Hamilton. 
 A fellow officer and messmate describes him, 
 
 1 Flanders, Lives qf the Chief Justices, ii. 291. 
 
12 JOHN MARSHALL 
 
 during the dreadful winter at Valley Forge, 
 as neither discouraged nor disturbed by any 
 thing, content with whatever turned up, and 
 cheering everybody by his exuberance of 
 spirits and " his inexhaustible fund of anec 
 dote." He was "idolized by the soldiers 
 and Ins brother officers." 
 
 President Quincy gives us a glimpse of 
 him at this period, as he heard him described 
 at a dinner with John Randolph and a large 
 company of Virginians and other Southern 
 gentlemen. They were talking of Marshall s 
 early life and his athletic powers. " It was 
 said that he surpassed in them any man in 
 the army ; that when the soldiers were idle 
 at their quarters, it was usual for the offi 
 cers to engage in matches of quoits, or in 
 jumping and racing ; that he would throw a 
 quoit farther, and beat at a race any other ; 
 that he was the only man who, with a run 
 ning jump, could clear a stick laid on the 
 heads of two men as tall as himself. On 
 one occasion he ran in his stocking feet with 
 a comrade. His mother, in knitting his 
 stockings, had the legs of blue yarn and the 
 
BEFORE BECOMING CHIEF JUSTICE 13 
 
 heels of white. This circumstance, com 
 bined with his uniform success in the race, 
 led the soldiers, who were always present at 
 these races, to give him the sobriquet of 
 4 Silver-Heels, the name by which he was 
 generally known among them." 
 
 Toward the end of 1779, owing to the 
 disbanding of Virginia troops at the end of 
 their term of service, he was left without a 
 command, and went to Virginia to await the 
 action of the legislature as to raising new 
 troops. It was a fortunate visit ; for at 
 Yorktown he met the young girl who, two 
 or three years later, was to become his wife ; 
 and he was also able to improve his leisure 
 by attending, for a few months in the early 
 part of 1780, two. courses of lectures at the 
 college, on law and natural philosophy. This 
 was all of college or university that he ever 
 saw ; but later, from several of them, he 
 received their highest honors. In 1802 
 the college of New Jersey (Princeton, where 
 his oldest son, Thomas, was to graduate 
 in 1803), in 1806, Harvard, and in 1815, 
 the University of Pennsylvania, made him 
 
14 JOHN MARSHALL 
 
 doctor of laws. 1 Marshall s opportunity for 
 studying law, under George Wythe, at Wil 
 liam and Mary College, seems to have been 
 owing to a change in the curriculum, made, 
 just at that time, at the instance of Jeffer 
 son, governor of the State, and, in that capa 
 city, visitor of the college. The chair of 
 divinity had just been abolished, and one 
 of law and police, and another of medicine, 
 were substituted. On December 29, 1779, 
 the faculty voted that, " for the encourage 
 ment of science, a student, on paying 
 annually 1000 pounds of tobacco, shall be 
 entitled to attend any school of the follow 
 ing professors, viz. : of Law and Police ; of 
 Natural Philosophy and Mathematics," etc. 
 Marshall chose the two courses above named ; 
 he must have been one of the very first to 
 avail himself of this new privilege. He 
 remained only one term. In view of what 
 was to happen by and by, it is interesting to 
 observe that this opportunity for education 
 in law came through the agency of Thomas 
 Jefferson. 
 
 1 His youngest son, Edward Carrington Marshall, 
 graduated at Harvard in 1826. 
 
BEFORE BECOMING CHIEF JUSTICE 15 
 
 The records of the Phi Beta Kappa Soci 
 ety at William and Mary College, where 
 that now famous society had originated less 
 than a year and a half before, show that on 
 the 18th of May, 1780, "Captain John 
 Marshall, being recommended as a gentle 
 man who would make a worthy member of 
 the society, was balloted for and received ; " 
 and three days later he was appointed, with 
 others, "to declaim the question whether 
 any form of government is more favorable 
 to public virtue than a Commonwealth." 
 Bushrod Washington and other well-known 
 names are found among his associates in this 
 chapter, which has been well called "an 
 admirable nursery of patriots and states 
 men." 
 
 It was in the summer of 1780 that Mar 
 shall was licensed to practice law. 
 
 During this visit to Virginia, as I have 
 said, he met the beautiful little lady, four 
 teen years old, who became his wife at the 
 age of sixteen, was to be the mother of his 
 ten children, 1 and was to receive from him 
 
 1 Only six of his children grew to full age. See his 
 
1C JOHN MARSHALL 
 
 the most entire devotion until the day of her 
 death in 1831. Some letters of her older 
 sister, Mrs. Carrington, written to another 
 sister, have lately been printed, which give 
 us a glimpse of Captain Marshall in his 
 twenty-fifth year. These ladies were the 
 daughters of Jaquelin Ambler, formerly col 
 lector of customs at Yorktown, and then 
 treasurer of the colony, and living in that 
 town, next door to the family of Colonel 
 Marshall. Their mother was that Rebecca 
 Burwell, for whom, under the name of " Be 
 linda," Jefferson had languished, in his 
 youthful correspondence of some twenty 
 years before. The girls had often heard the 
 captain s letters to his family, and had the 
 highest expectations when they learned that 
 he was coming home from the war. They 
 were to meet him first at a ball, and were 
 contending for the prize beforehand. Mary, 
 the youngest, carried it off. " At the first 
 introduction," writes her sister, who was but 
 
 touching letter to Judge Story of June 26, 1831 : " You 
 ask me if Mrs. Marshall and mysolf have ever lost a child. 
 We have lost four," etc. Proceedings of the Mass. Hist. 
 Soc. (:M series) xiv. o45. 
 
BEFORE BECOMING CHIEF JUSTICE 17 
 
 one year older, " he became devoted to her." 
 " For my own part," she adds, " I felt not the 
 smallest wish to contest the prize with her. 
 . . . She, with a glance, divined his charac 
 ter, . . while I, expecting an Adonis, lost 
 all desire of becoming agreeable in his eyes 
 when I beheld his awkward, unpolished 
 manner and total ,jigligence of person." 
 " How trivial now seem all such objections ! " 
 she exclaims, writing in 1810, and going on 
 to speak with the utmost admiration of his 
 relations to herself and all her family, and 
 above all, to his wife. " His exemplary ten 
 derness to our unfortunate sister is without 
 parallel. With a delicacy of frame and 
 feeling that baffles all description, she be 
 came, early after her marriage, a prey to 
 extreme nervous affection, which, more or 
 less, has embittered her comfort through 
 her whole life ; but this has only seemed to 
 increase his care and tenderness, and he is, 
 as you know, as entirely devoted as at the 
 moment of their first being married. Al 
 ways and under every circumstance an en 
 thusiast in love, I have very lately heard 
 
18 JOHN MARSHALL 
 
 him declare that he looked with astonish 
 ment at the present race of lovers, so totally 
 unlike what he had been himself. His never- 
 failing cheerfulness and good humor are a 
 perpetual source of delight to all connected 
 with him, and, I have not a doubt, have 
 been the means of prolonging the life of her 
 he is so tenderly devoted to." 
 
 " He was her devoted lover to the very 
 end of her life," another member of his fam 
 ily connection has said. And Judge Story, 
 in speaking of him after his wife s death, 
 described him as " the most extraordinary 
 man I ever saw for the depth and tenderness 
 of his feelings." 
 
 A little touch of his manner to his wife 
 is seen in a letter, which is in print, written 
 to her from the city of Washington, on Feb 
 ruary 23, 1825, in his seventieth year. He 
 had received an injury to his knee, about 
 which Mrs. Marshall was anxious. " I 
 shall be out," he writes, " in a few days. 
 All the ladies of the secretaries have been 
 to see me, some more than once, and have 
 brought me more jelly than I could eat, and 
 
BEFORE BECOMING CHIEF JUSTICE 19 
 
 many other things. I thank them, and 
 stick to my barley broth. Still I have lots 
 of time on my hands. How do you think I 
 beguile it ? I am almost tempted to leave 
 you to guess, until I write again. You must 
 know that I begin with the ball at York, 
 our splendid assembly at the Palace in Wil- 
 liamsburg, my visit to Richmond for a fort 
 night, my return to the field, and the very 
 welcome reception you gave me on my arri 
 val at Dover, our little tiffs and makings-up, 
 my feelings when Major Dick l was courting 
 you, my trip to the Cottage [the Ambler 
 home in Hanover County, where the mar 
 riage took place], 2 the thousand little in 
 cidents, deeply affecting, in turn." 
 
 This " ball at York " was the one of 
 which Mrs. Carrington wrote ; and of the 
 " assembly at the Palace " she also gave an 
 account, remarking that " Marshall was de 
 voted to my sister." 
 
 Miss Martineau, who saw him the year 
 
 1 Richard Anderson, father of Robert Anderson, the 
 hero of Fort Sumter. See Marion Harland s Old Colo 
 nial Homesteads, 97. 
 
 2 But see Mrs. Hardy, in The Green Bag, viii. 482. 
 
20 JOHN MARSHALL 
 
 before he died, speaks with great emphasis 
 of what she calls his " reverence " and his 
 affectionate respect for women. There were 
 many signs of this all through his life. Even 
 in the grave and too monotonous course of 
 his " Life of Washington," one comes now and 
 then upon a little gleam of this sort, that 
 lights up the page ; as when he speaks of 
 Washing-ton s engagement to Mrs. Custis, a 
 lady " who to a large fortune and a fine per 
 son added those amiable accomplishments 
 which ... fill with silent but unceasing 
 felicity the quiet scenes of private life." 
 When he is returning from France, in 1798, 
 he writes gayly back from Bordeaux to the 
 Secretary of Legation at Paris : " Present 
 me to my friends in Paris ; and have the 
 goodness to say to Madame Vilette, in my 
 name and in the handsomest manner, every 
 thing which respectful friendship can dic 
 tate. When you have done that, you will 
 have rendered not quite half justice to my 
 sentiments." " He was a man," said Judge 
 Story, " of deep sensibility and tenderness ; 
 . . . whatever may be his fame in the eyes 
 
BEFORE BECOMING CHIEF JUSTICE 21 
 
 of the world, that which, in a just sense, 
 was his brightest glory was the purity, affec- 
 tionateiiess, liberality, and devotedness of his 
 domestic life." 
 
 Marshall left the army in 1781, when 
 most of the fighting in Virginia was over ; ) ^ 
 and began practice in Fauquier County when ( 
 the courts were opened, after Cornwallis s 
 surrender, in October of that year. 
 
 Among his neighbors he was always a 
 favorite. In the spring of 1782 he was 
 elected to the Assembly, and in the autumn 1 
 to the important office of member of the I 
 " Privy Council, or Council of State," con 
 sisting of eight persons chosen by joint 
 ballot of the two houses of the Assembly. 
 "Young Mr. Marshall," wrote Edmund 
 Pendleton, presiding judge of the Court of 
 Appeals, to Madison, in November of that 
 year, " is elected a councilor. . . . He is 
 clever, but I think too young for that de 
 partment, which he should rather have 
 earned, as a retirement and reward, by ten 
 or twelve years of hard service." But, 
 whether young or old, the people were for- 
 
22 JOHN MARSHALL 
 
 ever forcing him into public life. Eight 
 times he was sent to the Assembly ; in 1788 
 to the Federal Convention of Virginia, and 
 in 1798 to Congress. 
 
 Unwelcome as it was to him, almost al 
 ways, to have his brilliant and congenial 
 place and prospects at the bar thus inter 
 fered with, we can see now what an admi 
 rable preparation all this was for the great 
 station, which, a little later, to the endless 
 benefit of his country, he was destined to 
 fill. What drove him into office so often 
 was, in a great degree, that delightful and 
 remarkable combination of qualities which 
 made everybody love and trust him, even 
 his political adversaries, so that he could be 
 chosen when no one else of his party was 
 available. In this way, happily for his 
 country, he was led to consider, early and 
 deeply, those difficult problems of govern 
 ment that distressed the country in the dark 
 period after the close of the war, and during 
 the first dozen years of the Federal Consti 
 tution. 
 
 As regards the effect of his earlier experi- 
 
BEFORE BECOMING CHIEF JUSTICE 23 
 
 ence in enlarging the circle of a patriot s 
 thoughts and affections, he himself has said : 
 " I am disposed to ascribe my devotion to N 
 the Union, and to a government competent 
 to its preservation, at least as much to cas 
 ual circumstances as to judgment. I had 
 grown up at a time . . . when the maxim, 
 4 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, 
 
 t 
 
24 JOHN MARSHALL 
 
 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 grad 
 ually 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 re 
 ports show his name is that of Hite v. Fair 
 fax (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 " North 
 ern Neck" of Virginia, an extensive region 
 given by the crown to Lord Fairfax s ances 
 tor, 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 
 
BEFORE BECOMING CHIEF JUSTICE 25 
 
 parts, and Chesapeake Bay, together with 
 the rivers themselves and all the islands 
 within the banks of the rivers." This de 
 scription 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 Rappahaunock. 
 Bishop Meade 1 describes it as the region 
 which, beginning on the Chesapeake Bay, 
 lies between the Potomac and Rappahan- 
 nock 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 Moun 
 tains, 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 char 
 acteristics, the cogency, clear method, and 
 neat precision of thought and speech, by 
 which his later work was marked. " I had 
 
 1 Old Churches and Families of Virginia, ii. 105. 
 
26 JOHN MARSHALL 
 
 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 ser 
 vices 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 con 
 struction 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 
 
BEFORE BECOMING CHIEF JUSTICE 27 
 
 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 gen 
 erally succeed. None will say that the 
 complainants have failed ; and if their hard 
 ships 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 set 
 tled a till then uncultivated desert." 
 
 Compare with this the like simple felicity 
 and exactness of expression in his last re 
 ported utterance in court, when he was clos 
 ing his great career as Chief Justice of the 
 
28 JOHN MARSHALL 
 
 United States, forty-nine years later. He is 
 refusing a motion for delay : " The court has 
 taken into its serious and anxious considera 
 tion 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 con 
 sidered, that due attention has been given 
 to the arguments of counsel, and that the 
 best judgment of the court has been exer 
 cised on the case, may be sometimes in 
 dulged. Even this is not always attainable. 
 In the excitement produced by ardent con 
 troversy, gentlemen view the same object 
 through such different media that minds 
 not unfrequently receive therefrom pre 
 cisely opposite impressions. The court, how 
 ever, must see with its own eyes, and exer 
 cise its own judgment guided by its own 
 reason. . . . The opinion of the court will 
 be delivered." 1 
 
 1 It was given by another judge. 
 
BEFORE BECOMING CHIEF JUSTICE 29 
 
 At first, he had brought from the army, 
 and from his home on the frontier, simple 
 and rustic^ways which surprised some per 
 sons at Richmond, whose conception of 
 greatness was associated with very differ 
 ent 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 lit 
 tle pleasantry with the landlord, and then 
 passed on." A gentleman from the country 
 was present, who had a case coming on be 
 fore the Court of Appeals, and was referred 
 by the landlord to Marshall as the best law 
 yer 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 
 
 O 
 
 lawyer, with powdered wig and in black 
 cloth, soon entered, and the gentleman en- 
 
30 JOHN MARSHALL 
 
 gaged him. In the first case that came up, 
 this man and Marshall spoke on opposite 
 sides. The gentleman listened, saw his mis 
 take, 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 Ran 
 dolph or of Grayson." 
 
 In such stories as these, one is reminded, 
 as he is often reminded, of a resemblance 
 between Marshall and Lincoln. Very dif 
 ferent 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 Rich- 
 
BEFORE BECOMING CHIEF JUSTICE 31 
 
 moncl lately, in speaking of Edmund Ran 
 dolph, 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 never 
 theless displays great superiority when he 
 applies his mind to business." Another 
 contemporary, who praises his force and elo 
 quence in speaking, yet says : "It is diffi 
 cult 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 be 
 fore it acquires impetus to sustain its soar 
 ing 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 anony 
 mously in 1804, describes him as one, " who, 
 without the advantage of person, voice, atti 
 tude, gesture, or any of the ornaments of an 
 
32 JOHN MARSHALL 
 
 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 prompt 
 itude 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 ear- 
 \ nestness 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, 1 
 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 
 
 1 Mr. Justice Gray preserves this fact in his address on 
 Mai-shall. His commission bore the same date with that 
 of Chief Justice Jay, September 20, 1789, two days after 
 the approval of the Judiciary Act. 
 
BEFORE BECOMING CHIEF JUSTICE 33 
 
 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 ; l 
 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 recollec 
 tions." 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 demonstra 
 tions and the utmost enthusiasm. A corre 
 spondent 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 No 
 vember : " Saving General Washington, I 
 believe the President, Pinckney, and Mar- 
 1 See Wait s State Papers, iii. 165-304. 
 
34 JOHN MARSHALL 
 
 shall are the most popular characters now in 
 our country. There is a certain something 
 in the correspondence of Pinckney and Mar 
 shall . . . that has united all heads and 
 hearts in their eulogy." It is understood 
 that the American side of this correspond 
 ence 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 re 
 spects, he disagreed. 
 
 Among those who paid their respects to 
 Marshall, on his return from France, was 
 Thomas Jefferson, the Vice-President, whose 
 correspondence shows him at the time ex 
 pressing the most unflattering opinion of the 
 envoys. Jefferson wrote to Marshall the fol 
 lowing note. " In after years," says Mrs. 
 Hardy, one of Marshall s descendants, 1 "the 
 Chief Justice frequently laughed over it, 
 saying, 4 Mr. Jefferson came very near tell 
 ing me the truth; the added un to lucky 
 policy alone demanded. " The note ran 
 thus : " Thos. Jefferson presents his compli- 
 1 The Green Bag, viii. 482. 
 
BEFORE BECOMING CHIEF JUSTICE 35 
 
 ments to General Marshall. He Lad the 
 honor of calling at his lodgings twice this 
 morning, but was so plucky as to find that 
 he was out on both occasions. He wished to 
 have expressed in person his regret that a 
 pre-engagement for to-day, which could not 
 be dispensed with, would prevent him the 
 satisfaction of dining in company with Genl. 
 Marshall, and, therefore, begs leave to place 
 here the expressions of that respect which in 
 company with his fellow-citizens he bears him. 
 
 " Genl. Marshall, 
 
 at Oeller s Hotel, June 23d, 1798." 
 
 In 1798 Adams offered to Marshall the 
 seat on the Supreme Bench, made vacant by 
 the death of James Wilson. He declined 
 it ; and it went to his old associate at Wil 
 liam and Mary College, Bushrod Washing 
 ton. Marshall did yield, however, to General 
 Washington s urgent request to stand for 
 Congress that year. He held out long 
 against Washington s arguments, and only 
 yielded, at last, when that venerated man 
 called attention to his own recent sacrifice 
 in accepting the unwelcome place of lieu- 
 
36 JOHN MARSHALL 
 
 tenant-general of the army. When that 
 went into the scale it was too much. Mar 
 shall was then on a visit to Mount Vernon, 
 whither he had been invited in August or 
 September, in company with Washington s 
 nephew, the coming judge. 
 
 On their way to Mount Vernon, the two 
 travelers met with a misadventure which 
 gave great amusement to Washington, and 
 of which lie enjoyed telling his friends. 
 They came on horseback, and carried but 
 one pair of saddlebags, each using one side. 
 Arriving thoroughly drenched by rain, they 
 were shown to a chamber to change their 
 garments. One opened his side of the bags 
 and drew forth a black bottle of whiskey. 
 He insisted that he had opened his compan 
 ion s repository. Unlocking the other side, 
 they found a big twist of tobacco, some corn 
 bread, and the equipment of a pack-saddle. 
 They had exchanged saddlebags with some 
 traveler, and now had to appear in a ludi 
 crous misfit of borrowed clothes. 1 
 
 1 Paulding s Life of Washington, ii. 191 ; LippincotCs 
 Magazine, ii. 624, 625. 
 
BEFORE BECOMING CHIEF JUSTICE 37 
 
 The election of Marshall to Congress ex 
 cited great interest. 1 Washington heartily \ 
 rejoiced in it. Jefferson, on the other hand? / 
 remarked that while Marshall might trouble 
 the Republicans somewhat, yet he would now 
 be unmasked. He had been popular with 
 the mass of the people, Jefferson said, from 
 his " lax, lounging manners," and with wiser 
 men through a " profound hypocrisy." But 
 now his British principles would stand re 
 vealed. 
 
 The New England Federalists were very 
 curious about him ; they had been alarmed 
 and outraged, during the campaign, by_his 
 expressing opposition to the alien and sedi- 
 Jjion laws ; but they were much impressed 
 by him. Theodore Sedgwick wrote to Ruf us 
 
 1 In an amusing account of this election (Munford s 
 The Two Parsons), we are told that the sheriff presided, 
 with the two candidates, Marshall and John Clopton, 
 seated on the justice s bench. The voter, being- asked 
 for whom he voted, gave the name of his candidate ; and 
 the latter thanked him ; e. g., " Your vote is appreciated, 
 sir," said Marshall to his friend Parson Blair. For an 
 account of the same method of conducting elections in 
 Virginia at a later period, see John S. Wise s The End 
 of an Era. 
 
38 JOHN MARSHALL 
 
 King that he had " great powers, and much 
 dexterity in the application of them. . . . 
 We can do nothing without him. * But 
 Sedgwick wished that "his education had 
 been on the other side of the Delaware." 
 George Cabot wrote to King : " General 
 Marshall is a leader. . . . But you see in 
 him the faults of a Virginian. . . . He thinks 
 too much of that State, and he expects that 
 the world will be governed by rules of logic." 
 But Cabot hopes to see him improve, and 
 adds, "He seems calculated to act a great 
 part." In the end, the Northern Federalists 
 were disappointed in finding him too mod 
 erate. He held the place of leader of the 
 House, and passed into the cabinet in May, 
 1800. On January 31, 1801, he was com 
 missioned as Chief Justice. 
 
CHAPTER II 
 
 ARGUMENTS AND SPEECHES ; LIFE OF WASH 
 INGTON ; RELATIONS WITH JEFFERSON 
 
 THERE is little room for quotations from 
 Marshall s speeches or dispatches. 
 
 Some reference has already been made to 
 his earliest reported argument in court, in 
 1786. In the Virginia Federal Convention, 
 in 1788, Marshall s principal speeches re 
 lated to the subjects of taxation, the militia, , 
 and the judiciary. These, so far as pre 
 served, are found in the third volume of 
 Elliot s Debates, and in Dr. Grigsby s very ! 
 interesting History of that Convention, in 
 the tenth volume of the " Virginia Historical 
 Collections." Nothing remains of a famous 
 speech in support of Jay s treaty, at a public 
 meeting in Richmond in 1795. A summary 
 of his strong but unsuccessful argument in 
 1796, in the case of Ware v. Hylton (3 
 Dallas 199), as to the claims of British 
 
40 JOHN MARSHALL 
 
 creditors, his only case before the Supreme 
 Court of the United States, is preserved in 
 the volume of reports. This argument at 
 tracted much attention among the statesmen 
 at Philadelphia. " I then became acquainted," 
 he wrote to a friend, " with Mr. Cabot, Mr. 
 Ames, Mr. ]exter, and Mr. Sedgwick of 
 Massachusetts, Mr. Wadsworth of Con 
 necticut, and Mr. King of New York. . . . 
 I was particularly intimate with Mr. Ames. * 
 
 After Washington s death in 1799, Mar 
 shall, in a short and well-known speech, 
 moved the resolution of the House of Repre 
 sentatives. 
 
 A little afterwards he made a great and 
 admirably thorough address in a matter which 
 then deeply affected the public mind ; from 
 this, his greatest public speech, 1 a quotation 
 is given below. It was made March 4, 1800, 
 
 1 "The masterly and conclusive argument of John 
 Marshall in the House of Representatives. 8 Stat. 120; 
 Wharton s State Trials, 392 ; Bee [Reports] , 280 ; 5 Wheat, 
 appendix 3. Gray, J., speaking 1 for the Supreme Court 
 of the United States, in Fong Yue Ting v. U. S., 149 U. S. 
 098, 714. This speech is also found in Moore s American 
 Eloquence, ii. 7. 
 
ARGUMENTS AND SPEECHES 41 
 
 in defense of the President s action in the 
 case of Thomas Nash, alias Jonathan Hob- 
 bins. This person, a British subject, but 
 claiming to be an American citizen, and to 
 have been impressed into the British navy, 
 was charged with piracy and murder on 
 board a British ship of war in 1791. Being 
 found in Charleston, S. C., he was arrested 
 in 1799, at the instance of the British 
 consul, and held to await an application 
 for his extradition under article 27 of the 
 treaty with Great Britain of 1795. That 
 article bound the two countries reciprocally 
 to deliver up, on request of the other, per 
 sons charged with murder committed within 
 the jurisdiction of that other. Evidence of 
 criminality was first to be furnished, such as 
 would justify commitment for trial on the 
 same charge in the country where the ac 
 cused was found. 
 
 An application for extradition was made 
 to the federal authorities in Charleston, but 
 at their suggestion this was transferred to 
 the President, through the Secretary of 
 State. The Secretary informed Bee, the 
 
42 JOHN MARSHALL 
 
 United States District Judge, of the Presi 
 dent s " advice and request " that Nash should 
 be delivered up, at the same time referring 
 to the clause in the treaty as to the neces 
 sary evidence of criminality. 1 The judge on 
 July 1, 1799, informed the Secretary that 
 he had notified the British consul that on 
 the production of such evidence, the prisoner 
 would be delivered up when the consul was 
 ready to receive him. The delivery was 
 made ; and on September 9 of the same year, 
 the British admiral was able to inform the 
 British Minister that Nash " has been tried 
 at a court martial, and sentenced to suffer 
 death, and afterwards hung in chains ; which 
 sentence has been put into execution. * 
 
 These events were used with great effect 
 by the political opponents of the administra 
 tion. When Congress met, the President 
 was called upon by the House of Repre- 
 
 1 The President had written to the Secretary of State 
 from Quincy, May 21, 1799 : " How far the President of 
 the United States would be justified in directing the judge 
 to deliver up the offender is not clear. I have no objec 
 tion to advise, and request him to do so." Wharton s 
 State Trials, 418. 
 
ARGUMENTS AND SPEECHES 43 
 
 sentatives for the papers relating to them ; 
 and when they were sent in, Edward Liv 
 ingston, of New York, submitted resolutions 
 condemning the action of the executive, on 
 the ground that the determination of the 
 questions involved in the case " are all mat 
 ters exclusively for judicial inquiry ; " that 
 the acts of the President " are a dangerous 
 interference of the executive with judicial 
 decisions ; " and that the compliance of the 
 district judge " is a sacrifice of the constitu 
 tional independence of the judicial power." 
 After a full debate, these resolutions were 
 negatived by a decided vote. Marshall s 
 very able argument vindicated the action 
 taken, and laid down principles which have 
 ever since governed the course of the gov 
 ernment in such cases. 
 
 The following passages will afford a speci 
 men of the style and method of this address, 
 a style and method which were characteristic 
 of all Marshall s work : 
 
 " The same argument applies to the ob 
 servations on the seventh article of the 
 amendments to the Constitution. That arti- 
 
44 JOHN MARSHALL 
 
 cle relates only to trials in the courts of the 
 United States, and not to the performance 
 of a contract for the delivery of a murderer 
 not triable in those courts. 
 
 " In this part of the argument, the gentle 
 man from New York [Mr. Livingston] has 
 presented a dilemma, of a very wonderful 
 structure indeed. He says that the offense 
 of Thomas Nash was either a crime or not a 
 crime. If it was a crime, the constitutional 
 mode of punishment ought to have been 
 observed; if it was not a crime, he ought 
 not to have been delivered up to a foreign 
 government, where his punishment was in 
 evitable. 
 
 " It has escaped the observation of that 
 gentleman that if the murder committed by 
 Thomas Nash was a crime, yet it was not a 
 crime provided for by the Constitution or 
 triable in the courts of the United States ; 
 and that if it was not a crime, yet it is the 
 precise case in which his surrender was stip 
 ulated by treaty. Of this extraordinary 
 dilemma, the gentleman from New York is 
 himself perfectly at liberty to retain either 
 form. 
 
ARGUMENTS AND SPEECHES 45 
 
 " He has chosen to consider it as a crime, 
 and says it has been made a crime by treaty, 
 and is punished by sending the offender out 
 of the country. The gentleman is incorrect 
 in every part of his statement. Murder on 
 board a British frigate is not a crime created 
 by treaty. It would have been a crime of 
 precisely the same magnitude had the treaty 
 never been formed. It is not punished by 
 sending the offender out of the United 
 States. The experience of the unfortunate 
 criminal, who was hung and gibbeted, evinced 
 to him that the punishment of his crime was 
 of a much more serious nature than mere 
 banishment from the United States. 
 
 " The gentleman from Pennsylvania [Mr. 
 Gallatin] and the gentleman from Virginia 
 [Mr. Nicholas] have both contended that 
 this was a case proper for the decision of 
 the courts, because points of law occurred, 
 and points of law must have been decided in 
 its determination. The points of law which 
 must have been decided are stated by the 
 gentleman from Pennsylvania to be, first, a 
 question whether the offense was committed 
 
46 JOHN MARSHALL 
 
 within the British jurisdiction ; and, sec 
 ondly, whether the crime charged was com 
 prehended within the treaty. 
 
 4 It is true, sir, these points of law must 
 have occurred, and must have been decided, 
 but it by no means follows that they could 
 only have been decided in court. A variety 
 of legal questions must present themselves 
 in the performance of every executive duty, 
 but these questions are not therefore to be 
 decided in court. Whether a patent for 
 land shall issue or not is always a question 
 of law, but not a question which must neces 
 sarily be carried into court. The gentleman 
 from Pennsylvania seems to have permitted 
 himself to have been misled by the misrepre 
 sentations of the Constitution made in the 
 resolutions of the gentleman from New 
 York ; and, in consequence of being so mis 
 led, his observations have the appearance of 
 endeavoring to fit the Constitution to his 
 arguments, instead of adapting his argu 
 ments to the Constitution. 
 
 " When the gentleman has proved that 
 these are questions of law, and that they 
 
ARGUMENTS AND SPEECHES 47 
 
 must have been decided by the President, he 
 has not advanced a single step towards prov 
 ing that they were improper for executive 
 decision. The question whether vessels cap 
 tured within three miles of the American 
 coast, or by privateers fitted out in the 
 American ports, were legally captured or 
 not, and whether the American government, 
 is bound to restore them, if in its power, 
 were questions of law, but they were ques 
 tions of political law, proper to be decided, 
 and they were decided by the executive, and 
 not by the courts. The casus foederis of 
 the guaranty was a question of law, but no 
 man could have hazarded the opinion that 
 such a question must be carried into court, 
 and can only be there decided. So the 
 casus fcederis, under the twenty-seventh 
 article of the treaty with Britain, is a ques 
 tion of law, but of political law. The ques 
 tion to be decided is, whether the particular 
 case proposed be one in which the nation 
 has bound itself to act, and this is a question 
 depending on principles never submitted to 
 courts. If murder should be committed 
 
48 JOHN MARSHALL 
 
 within the United States, and the murderer 
 should seek an asylum in Britain, the ques 
 tion whether the casus fcederis, of the 
 twenty-seventh article had occurred, so that 
 his delivery ought to be demanded, would 
 be a question of law, but no man would say 
 it was a question which ought to be decided 
 in the courts. 
 
 " When, therefore, the gentleman from 
 Pennsylvania has -established that, in deliver 
 ing up Thomas Nash, points of law were 
 decided by the President, he has established 
 a position which in no degree whatever aids 
 his argument. The case is in its nature a 
 national demand, made upon the nation. 
 The parties are the two nations. They can 
 not come into court to litigate their claims, 
 
 nor can a court decide on them. Of conse- 
 
 . 
 quence, the demand is not a case for judicial 
 
 cognizance. The President is the sole organ 
 of the nation in its external relations, and 
 its sole representative with foreign nations. 
 Of consequence, the demand of a foreign 
 nation can only be made on him. . . . 
 
 " The treaty, which is a law, enjoins the 
 
ARGUMENTS AND SPEECHES 49 
 
 performance of a particular object. The 
 person who is to perform this object is 
 marked out by the Constitution, since the 
 person is named who conducts the foreign 
 intercourse and is to take care that the laws 
 be faithfully executed. The means by which 
 it is to be performed, the force of the nation, 
 are in the hands of this person. Ought not 
 this person to perform the object, although 
 the particular mode of using the means has 
 not been prescribed? Congress, unques 
 tionably, may prescribe the mode, and Con 
 gress may devolve on others the whole exe 
 cution of the contract ; but, till this is done, 
 it seems the duty of the executive depart 
 ment to execute the contract by any means 
 it possesses. 
 
 " The gentleman from Pennsylvania con 
 tends that, although this should be properly 
 an executive duty, yet it cannot be per 
 formed until Congress shall direct the mode 
 of performance. . . . The treaty stipidating 
 that a murderer shall be delivered up to jus 
 tice is as obligatory as an act of Congress 
 making the same declaration. If, then, 
 
50 JOHN MARSHALL 
 
 there was an act of Congress in the words 
 of the treaty, declaring that a person who 
 had committed murder within the jurisdic 
 tion of Britain, and sought an asylum within 
 the territory of the United States, should be 
 delivered up by the United States, on the 
 demand of his Britannic Majesty and such 
 evidence of his criminality as would have 
 justified his commitment for trial, had the 
 offense been committed here; could the 
 President, who is bound to execute the laws, 
 have justified the refusal to deliver up the 
 criminal by saying that the legislature had 
 totally omitted to provide for the case ? 
 
 " The executive is not only the constitu 
 tional department, but seems to be the 
 proper department to which the power in 
 question may most wisely and most safely be 
 confided. ... If, at any time, policy may 
 temper the strict execution of the contract, 
 where may that political discretion be placed 
 so safely as in the department whose duty it 
 is to understand precisely the state of the 
 political intercourse and connection between 
 the United States and foreign nations, to 
 
ARGUMENTS AND SPEECHES 51 
 
 understand the manner in which the partic 
 ular stipulation is explained and performed 
 by foreign nations, and to understand com 
 pletely the state of the Union ? " 
 
 This clear, strong, convincing speech, of 
 which I have quoted but a small portion, 
 settled the question then in dispute, and the 
 principles here laid down have controlled 
 the action of the government ever since. 
 
 Very soon after entering upon his duties 
 as Chief Justice, Marshall undertook to write 
 the " Life of Washington." This gave him a 
 great deal of trouble and mortification. It 
 proved to be an immense labor ; the pub 
 lishers were importunate, and he was driven 
 into print before he was ready. The result 
 was a work in five volumes, appearing from 
 1802 to 1804, full of the most valuable and 
 authentic material, well repaying perusal, 
 yet put together with singular lack of liter 
 ary skill, and in many ways a great disap 
 pointment. 1 In the later years of his life, 
 
 1 The short " autobiography " before referred to (ante, 
 p. 10, n.) ends thus: "I have written no book except 
 
52 JOHN MARSHALL 
 
 he revised it, corrected some errors, short 
 ened it, and published it in three volumes : 
 one of them, in 1824, as a separate prelim 
 inary history of the colonial period, and the 
 other two, in 1834, as the " Life of Washing 
 ton." This work, in its original form, gave 
 great offense to Jefferson, written, as it was, 
 from the point of view of a constant admirer 
 and supporter of the policy of Washington ; 
 a " five volume libel," Jefferson called it. 
 
 Jefferson had ludicrous misconceptions as 
 to Marshall s real character. It is said that 
 after Burr s trial, in 1807, all personal in 
 tercourse between them ceased. 1 Referring 
 in 1810 to the " batture " case, in which 
 Edward Livingston sued him, and which 
 was to come before Marshall, Jefferson says 
 that he is certain what the result of the 
 case should be, but nobody can tell what it 
 will be ; for " the Judge s mind [is] of that 
 gloomy malignity which will never let him 
 forego the opportunity of satiating it upon a 
 
 the Life of Washington, which was executed with so 
 much precipitation as to require much correction." 
 1 Van Santvoord, Lives of the Chief Justices, 343, n. 
 
ARGUMENTS AND SPEECHES 53 
 
 victim. . . . And to whom is my appeal? 
 From the judge in Burr s case to himself 
 and his associate justices in Marbury v. 
 Madison. Not exactly, however. I observe 
 old Gushing is dead. [Judge Gushing had 
 died a fortnight before.] At length, then, 
 we have a chance of getting a Republican 
 majority in the Supreme Judiciary." And 
 he goes on to express his confidence in the 
 " appointment of a decided Republican, with 
 nothing equivocal about him." 
 
 Who was this decided and unequivocal 
 Republican to be? Jefferson was anxious 
 about it, and wrote to Madison, suggesting 
 Judge Tyler, of Virginia, as a candidate, 
 and reminding the President of Marshall s 
 " rancorous hostility to his country." Who 
 was it, in fact, that was appointed ? Who 
 but Joseph Story ! a Republican, indeed, 
 but one whom Jefferson, in this very year, 
 was designating as a " pseudo-Republican," 
 and who soon became Marshall s warmest 
 admirer and most faithful supporter. 
 
CHAPTER III 
 
 THE BEGINNINGS OF THE CHIEF JUSTICE S 
 CAREER ; AMERICAN CONSTITUTIONAL 
 LAW; MARBURY V. MADISON. 
 
 MARSHALL S accession to the bench was 
 marked by an impressive circumstance. For 
 ten years or more, he alone gave all the 
 opinions of the court to which any name 
 was attached, except where the case came up 
 from his own circuit, or, for any reason, he 
 did not sit. In the very few cases where 
 opinions were given by the other justices, it 
 was in the old way, seriatim, the method 
 followed before Marshall came in, as it was 
 also the method of contemporary English 
 courts. 
 
 Whatever may have been the purpose of 
 the Chief Justice in introducing this usage, 
 there can be no doubt as to the impression 
 it was calculated to produce. It seemed, all 
 of a sudden, to give to the judicial depart- 
 
CONSTITUTIONAL LAW 55 
 
 ment a unity like that of the executive, to 
 concentrate the whole force of that depart 
 ment in its chief, and to reduce the side-jus 
 tices to a sort of cabinet advisers. In the 
 very few early cases where there was ex 
 pressed dissent, it lost much of its impres- 
 siveness, when announced, as it sometimes 
 was, by the mouth that gave the opinion of 
 the court. 
 
 In 1812, when a change took place, the 
 court had been for a year without a quorum. 
 Moreover, Judge Story had just come to the 
 bench, a man of quite too exuberant an in 
 tellect and temperament to work well as a 
 silent side-judge. We remark, also, at the 
 beginning of that term, that the Chief Jus 
 tice was not in attendance, having, as the 
 reporter tells us, " received an injury by the 
 oversetting of the stage-coach on his jour 
 ney from Richmond." And it may be 
 added that just at this time the anxious 
 prayer of Jefferson was answered, and a ma 
 jority of the judges were Republicans. From 
 whatever cause, henceforward there was a 
 change ; and without returning to the old 
 
56 JOHN MARSHALL 
 
 habit of seriatim opinions, the side-judges 
 had their turn, as they do now. 
 
 In most of Marshall s opinions, one ob- 
 \ serves the style and special touch of a 
 thoughtful and original mind ; in some of 
 them the powers of a great mind, in full ac 
 tivity. His cases relating to international 
 law, as I am assured by those competent to 
 , judge, rank with the best there are in the 
 ^ books. As regards most of the more famil- 
 , iar titles of the law, it would be too much 
 to claim for him the very first rank. In 
 that region he is, in many respects, equaled 
 or surpassed by men more deeply versed in 
 the learning and technicalities of the law, in 
 what constitutes that " artificial perfection 
 of reason" which Coke used to glorify as 
 far transcending any man s natural reason, 
 men such as Story, Kent, or Shaw, or 
 even the reformer, Mansfield, whom he 
 greatly admired, Eldon, or Blackburn. But 
 in the field of constitutional law, a region 
 not open to an English lawyer, and es 
 pecially in one department of it, that relat 
 ing to the nature and scope of the National 
 
CONSTITUTIONAL LAW 57 
 
 Constitution, he was preeminent, first, 
 with no one second. It is hardly possible, 
 as regards this part of the law, to say too 
 much of the service he rendered to his 
 country, ^bitting in the highest judicial 
 place for more than a generation ; familiar, 
 from the beginning, with the Federal Con 
 stitution, with the purposes of its framers, 
 and with all the objections of its critics; 
 accustomed to meet these objections from 
 the time he had served in the Virginia Con 
 vention of 1788 ; convinced of the purpose 
 and capacity of this instrument to create a 
 strong nation, competent to make itself re 
 spected at home and abroad, and able to speak 
 with the voice and strike with the strength 
 of all ; assured that this was the paramount 
 necessity of the country, and that the great 
 source of danger was in the jealousies and . 
 adverse interests of the States, Marshall 
 acted on his convictions. He determined 
 to give full effect to all the affirmative con 
 tributions of power that went to make up 
 a great and efficient national government ; 
 arid fully, also, to enforce the national re- 
 

 
 58 JOHN MARSHALL 
 
 straints and prohibitions upon the States. 
 In both cases he included not only the powers 
 expressed in the Constitution, but those also 
 which should be found, as time unfolded, to 
 be fairly and clearly implied in the objects 
 for which the federal government was estab- 
 lished. \ In that long judicial life, with which 
 Providence blessed him, and blessed his 
 country, he was able to lay down, in a suc 
 cession of cases, the fundamental considera 
 tions which fix and govern the relative func 
 tions of the nation and the States, so plainly, 
 with such "fullness, with such simplicity and 
 strength of argument, such a candid allow 
 ance for all that was to be said upon the 
 other side, in a tone so removed from con 
 troversial bitterness, so natural and fit for a 
 great man addressing the " serene reason " 
 of mankind, as to commend these things to 
 the minds of his countrymen, and firmly to 
 fix them in the jurisprudence of the nation ; 
 so that " when the rain descended and the 
 floods came, and the winds blew and beat 
 upon that house, it fell not, because it was 
 founded upon a rock." j It was Marshall s 
 J L 
 
CONSTITUTIONAL LAW 59 
 
 strong constitutional doctrine, explained in 
 detail, elaborated, powerfully argued, over 
 and over again, with unsurpassable earnest 
 ness and force, placed permanently in our 
 judicial records, holding its own during the 
 long emergence of a feebler political theory, 
 and showing itself in all its majesty when 
 war and civil dissension came, it was 
 largely this that saved the country from suc 
 cumbing, in the great struggle of forty years / 
 ago, and kept our political fabric from going ^ 
 to pieces. _ 
 
 I do not forget our own Webster, or 
 others, in saying that to Marshall (if we 
 may use his own phrase about Washing 
 ton), "more than to any other individual, 
 and as much as to one individual was pos 
 sible," do we owe that prevalence of sound 
 constitutional opinion and doctrine at the 
 North that held the Union together ; to that 
 combination in him, of a great statesman s 
 sagacity, a great lawyer s lucid exposition 
 and persuasive reasoning, a great man s can 
 dor and breadth of view, and that judicial 
 authority on the bench, allowed naturally 
 
GO JOHN MARSHALL 
 
 and as of right, to a large, sweet nature, 
 which all men loved and trusted, capable of 
 harmonizing differences and securing the 
 largest possible amount of cooperation among 
 discordant associates. In a very great de 
 gree,^ was Marshall, and these things in 
 him, that have wrought out for us a strong 
 and great nation, one which men can love 
 and die for ; that " mother of a mighty race," 
 that stirred the soul of Bryant half a century 
 ago, as he dreamed how 
 
 " The thronging- years in glory rise, 
 
 And as they fleet, 
 Drop strength and riches at thy feet ; " 
 
 the nation whose image flamed in the heart 
 of Lowell, a generation since, as he greeted 
 her coming up out of the Valley of the 
 Shadow of Death : 
 
 " Oh Beautiful, my country, ours once more ! . . . 
 Among- the nations bright beyond compare I ... 
 What were our lives without thee ? 
 What all our lives to save thee ? 
 We reck not what we gave thee, 
 We will not dare to doubt thee, 
 But ask whatever else, and we will dare I " 
 
CONSTITUTIONAL LAW 61 
 
 It was early in Marshall s day that the 
 Supreme Court first took the grave step of 
 disregarding an act of Congress, a coordi 
 nate department, which conflicted with the 
 National Constitution. The right to deal 
 thus with their legislatures had already been 
 asserted in the States, and once or twice it 
 had really been exercised. Had the ques 
 tion related to a conflict between that Con 
 stitution and the enactment of a State, it 
 would have been a simpler matter. These 
 two questions, under European written con 
 stitutions, are regarded as different ones. It 
 is almost necessary to the working of a fed 
 eral system that the general government, and 
 each of its departments, should be free to 
 disregard acts of any department of the local 
 states which may be inconsistent with the 
 federal constitution. And so in Switzerland 
 and Germany the federal courts thus treat 
 local enactments. But there is not under 
 any written constitution in Europe a country 
 where a court deals in this way with the 
 act of its coordinate legislature. In Ger 
 many, at one time, this was done, under the 
 
n 
 
 62 JOHN MARSHALL 
 
 influence of a study of our law, but it was 
 soon abandoned. 1 
 
 In the colonial period, while we were de 
 pendencies of Great Britain, our legislation 
 was subject to the terms of the royal char 
 ters. Enactments were often disallowed by 
 the English Privy Council, sometimes acting 
 as a mere reviser of the colonial legislation, 
 and sometimes as an appellate judicial tribu 
 nal. Our people were, in this way, familiar 
 with the theory of a dependent legislature, 
 one whose action was subject to reversal by 
 judicial authority, as contrary to the terms 
 of a written charter of government. 
 
 When, therefore, after the war of inde 
 pendence, our new sovereign, namely, our 
 selves, the people, came to substitute for the 
 old royal charters the people s charters, what 
 we call our " constitutions/ - it was natural 
 to expect some legal restraint upon legisla 
 tion. It was not always found in terms; 
 indeed, it was at first hardly ever, if at all, 
 found set down in words. But it was a 
 
 1 Coxe, Jud. Power, 95-102 ; Thayer s Cases on Con. 
 stitutional Law, i. 146-149. 
 
CONSTITUTIONAL LAW 63 
 
 natural and just interpretation of these in 
 struments, made in regions with such a his 
 tory as ours and growing out of the midst of 
 such ideas and such an experience, to think 
 that courts, in the regular exercise of their 
 functions, that is to say, in dealing with liti 
 gated cases, could treat the constitutions as 
 law to be applied by them in determining 
 the validity of legislation. 
 
 But this, although, as we may well think, 
 a sound conclusion, was not a necessary one ; 
 and it was long denied by able statesmen, 
 judges, and lawyers. An elaborate and 
 powerful dissenting opinion by Chief Justice 
 Gibson, of Pennsylvania, containing the most 
 searching argument on the subject with 
 which I am acquainted, given in 1825, 1 
 reaches the result that under no constitu 
 tion where the power to set aside legislative 
 enactments is not expressly given, does it 
 exist. But it is recognized that in the Fed 
 eral Constitution the power is given, as re 
 gards legislation of the States inconsistent 
 with the Federal Constitution and laws. 
 
 1 Eakin v. Raub, 12 Sergeant & Rawle, 330. 
 
64 JOHN MARSHALL 
 
 It is not always noticed that in making our 
 Federal Constitution, there was an avoidance 
 of any explicit declaration of such a power 
 as touching federal legislation, while it was 
 carefully provided for as regards the States. 
 In the Federal Convention, there was great 
 anxiety to control the States, in certain par 
 ticulars ; and various plans were put for 
 ward, such as that Congress should have a 
 negative on state laws, and that governors 
 of the States should be appointed by the 
 federal authority, with power to negative 
 state acts. 
 
 But all these, at last, were rejected, and 
 the matter took the shape of a provision that 
 the Constitution and the constitutional laws 
 and treaties of the United States should be 
 the supreme law of the respective States; 
 and the judges of the several /States should 
 be bound thereby, anything in the constitu 
 tion or laws of any State to the contrary 
 notwithstanding. Later, the Committee on 
 Style changed the phrase " law of the re 
 spective States " to " law of the land." But 
 the language, as to binding the judges, was 
 
CONSTITUTIONAL LAW 65 
 
 still limited to the judges of the several 
 States. Observe, then, the scope of this pro 
 vision : it was to secure the authority of the 
 federal system within the States. 
 
 As to any method of protecting the fed 
 eral system within its own household, that is 
 to say, as against Congress, it was proposed 
 in the convention, for one thing, that each 
 House of Congress might call upon the 
 judges for opinions ; and, again, it was 
 urged, and that repeatedly and with great 
 persistence, that the judges should be joined 
 with the executive in passing on the approval 
 or disapproval of legislative acts, in what 
 we call the veto power. It was explicitly 
 said, in objecting to this, that the judges 
 woidd have the right to disregard unconsti 
 tutional laws anyway, an opinion put for 
 ward by some of the weightiest members. 
 Yet some denied it. And we observe that 
 the power was not expressly given. When 
 we find such a power expressly denied, and 
 yet not expressly given ; and when we ob 
 serve, for example, that leading public men, 
 e. </., so conspicuous a member of the con- 
 
66 JOHN MARSHALL 
 
 vention as Charles Pinckney of South Caro 
 lina, afterwards a senator from that State, 
 wholly denied the power ten years later ; l it 
 being also true that he and others of his way 
 of thinking urged the express restraints on 
 state legislation, we may justly reach the 
 conclusion that this question, while not over 
 looked, was intentionally left untouched. 
 Like the question of the bank and various 
 others, presumably it was so left in order 
 not to stir up enemies to the new instru 
 ment ; left to be settled by the silent deter 
 minations of time, or by later discussion. 
 
 Turning now to the actual practice under 
 the government of the United States, we find 
 that the judges of the Supreme Court had 
 hardly taken their seats, at the beginning of 
 
 1 What Pinckney said in 1799 was this : " Upon no 
 subject am I more convinced than that it is an unsafe 
 and dangerous doctrine in a republic ever to suppose that 
 a judge ought to possess the right of questioning or de 
 ciding upon the constitutionality of treaties, laws, or any 
 act of the legislature. It is placing the opinion of an 
 individual, or of two or three, above that of both branches 
 of Congress, a doctrine which is not warranted by the 
 Constitution, and will not, I hope, long have many advo 
 cates in this country." Wharton, State Trials, 412. 
 
CONSTITUTIONAL LAW 67 
 
 the government, when Chief Justice Jay and 
 several other judges, in 1790, communicated 
 to the President objections to the Judiciary 
 Act, as violating the Constitution, in naming 
 the judges of the Supreme Court to be judges 
 also of the circuit courts. 1 These judges, 
 however, did not refuse to act under this un 
 constitutional statute ; and the question did 
 not come judicially before the court until 
 Marshall s time, in 1803, 2 when it was held 
 that the question must now be regarded as 
 settled in favor of the statute, by reason of 
 acquiescence since the beginning of the gov 
 ernment. 3 
 
 1 4 Amer. Jurist, 293 ; Story, Const. 1579, n. 
 
 2 Stuart v. Laird, 1 Cranch, 299. 
 
 8 Marshall, when the act of 1802 restored the old sys 
 tem, stated to his associates his deliberate agreement 
 with the opinion expressed by his predecessors above 
 referred to, and proposed to refuse to sit in the circuit 
 court. All his brethren agreed with his view on the con 
 stitutional point, but thought the question should be re 
 garded as at rest, by reason of the earlier practice of the 
 court, up to 1801. This view prevailed, and was soon 
 afterwards, as above stated, judicially adopted by the 
 court. This statement is made by Chancellor Kent in 
 3 N. Y. Review, 347 (1838). 
 
 For the knowledge of the authorship of this valuable 
 article and of another related one in 2 ib. 372, I am in- 
 
68 JOHN MARSHALL 
 
 In observing, historically, the earlier con 
 ceptions of the judges of the Supreme Court 
 as to the method of dealing with unconstitu 
 tional legislation, one or two other transac 
 tions should be looked at. In 1792 (1 U. S. 
 Statutes, 243) a statute was enacted which re 
 quired the circuit court, partly composed, as 
 we have seen, of the judges of the Supreme 
 Court, to pass on the claims of certain sol 
 diers and others demanding pensions, and to 
 report to the Secretary of War ; who was, 
 in turn, to revise these returns and report 
 to Congress. The judges found great diffi 
 culty in acting under this statute, because it 
 imposed on them duties not judicial in their 
 nature ; and they expressed their views in 
 various ways. 
 
 In one circuit, the judges thinking it im 
 proper to act under this statute in their judi 
 cial capacity, for the reason above-named, 
 consented from charitable motives to serve 
 as " commissioners." 1 
 
 debted to the courtesy of Dr. J. S. Billings, the Director 
 
 of the New York Public Library, and the investigations of 
 
 Mr. V. II. Paltsits, one of the librarians in that institution. 
 
 1 This construction, that the statute purported to au- 
 
CONSTITUTIONAL LAW 69 
 
 In the Pennsylvania circuit, the three 
 judges wrote, in a letter to the President, 
 that " on a late painful occasion " they had 
 held the law invalid ; and they now stated the 
 matter to him, as being the person charged 
 with the duty of " taking care that the laws 
 be faithfully executed." They assured him 
 that while this judicial action of disregard 
 ing an act of Congress had been necessary, 
 it was far from pleasant. 
 
 The judges of another circuit, before 
 which no case had come, wrote a similar 
 letter to the President, declaring their rea 
 sons for thinking the law invalid. 
 
 In this same year, 1792, the Pennsyl 
 vania case came regularly up to the Su 
 preme Court, and was argued there. 1 This 
 might have produced a decision, but none 
 was ever given; and in the next year a 
 change in the statute provided relief for the 
 pension claimants in another way. 
 
 It is to be remarked, then, that this mat- 
 
 thorize their acting in that capacity was afterwards, in 
 1794, held by the Supreme Court to be wrong. Yale 
 Todd s Case, 13 Howard, 52. 
 i Hayburn s Case, 2 Dallas, 409. 
 
70 JOHN MARSHALL 
 
 ter resulted in no decision by the Supreme 
 Court of the United States on the question 
 of the constitutionality of the pension act ; 
 it produced only a decision at one of the 
 circuits, and informal expressions of opinion 
 from most of the judges. 
 
 These non-judicial communications of 
 opinion to the President seem, as has been 
 said, to have proceeded on the theory of fur 
 nishing information to one whose official 
 duty it was to see that the fundamental law 
 was faithfully carried out ; just as " Coun 
 cils of Revision," established by the consti 
 tutions of Pennsylvania and Vermont, were 
 to report periodically as to infractions of 
 the constitution. 
 
 It was, perhaps, these practices of private 
 communication between the President and 
 the judges that led very soon to another 
 interesting matter, a formal request by 
 the President, in 1793, for an opinion from 
 the judges on twenty-nine questions relating 
 to the treaties with France. This request 
 accorded with a colonial practice of asking 
 such opinions from judges ; a usage centu- 
 
CONSTITUTIONAL LAW 71 
 
 ries old in England, and preserved to-day in 
 the constitutions of a few States in this 
 country. The judges, however, declined 
 answering these questions, " considering 
 themselves," says Marshall, in his " Life of 
 Washington," " merely as constituting a legal 
 tribunal for the decision of controversies 
 brought before them in legal form." 1 Al 
 though this seems to have been obviously 
 the right course, since the proposition to 
 give power to put questions to the judges in 
 this way had been considered in the Federal 
 Convention and not allowed, yet we may re 
 mark how convenient such a power would 
 often have proved. If it be admitted, as it 
 always has been in England, and is, almost 
 universally, here, that such opinions are 
 merely learned advice and bind nobody, not 
 even the judges, they would often afford 
 the executive and Congress much needed 
 and early help upon constitutional questions 
 in serious emergencies ; such, for example, 
 as have lately presented themselves in our 
 own history. 
 
 1 Volume v., p. 444 (Philadelphia edition, 1807). 
 
72 JOHN MARSHALL 
 
 After this, there was an occasional allu 
 sion in the opinions of the Supreme Court 
 to the question of the power of that court 
 to pass on the constitutionality of Federal 
 enactments as being an undecided and more 
 or less doubtful question. But not until 
 1803, early in Marshall s time, was the 
 point judicially settled by the Supreme 
 Court. It came up in the case of Mar- 
 bury v. Madison, 1 the first case at the third 
 term after any opinions of Marshall were 
 reported. In that case, an act of Congress 
 was declared unconstitutional. 
 
 It was more than half a century before 
 that happened again. 
 
 Marbury v. Madison was a remarkable 
 case. It was connected intimately with cer 
 tain executive action for which Marshall as 
 Secretary of State was partly responsible. 
 For various reasons the case must have ex 
 cited peculiar interest in his mind. Within 
 three weeks before the end of Adams s ad 
 ministration, on February 13, 1801, while 
 Marshall was both Chief Justice and Secre- 
 
 1 1 Cranch, 137. 
 
CONSTITUTIONAL LAW 73 
 
 tary of State, 1 an act of Congress had abol 
 ished the old system of circuit and district 
 courts, and established a new one. This 
 gave to the President, Adams, the appoint 
 ment of many new judges, and kept him 
 and his secretary busy, during the last 
 hours of the administration, in choosing and 
 commissioning the new officials. 
 
 And another thing. The Supreme Court 
 had consisted heretofore of six judges. This 
 same act provided that after the next vacancy 
 there should be five judges only. Such ar 
 rangements as these, made by a party just 
 going out of power, were not ill calculated 
 to create, in the mind of the party coming 
 in, the impression of an intention to keep 
 control of the judiciary as long as possible. 
 
 There were, to be sure, other reasons for 
 some of this action. Several judges of the 
 Supreme Court, as we have seen, had signi* 
 fied to Washington, in 1790, the opinion 
 
 1 In like manner, Jay, commissioned Chief Justice on 
 September 26, 1789, continued, at Washington s request, 
 to act also as foreign secretary until Jefferson s return 
 from Europe. Jefferson did not reach New York until 
 March 21, 1790. 
 
74 JOHN MARSHALL 
 
 that the judiciary act of the previous year 
 was unconstitutional in making the judges 
 of that court judges also of the circuit court. 
 The new statute corrected this fault. Yet, 
 in regard to the time chosen for this very 
 proper action, it was observable that ten 
 years and more had been allowed to pass 
 before the mischief so promptly pointed out 
 by the early judges was corrected. 
 
 Again, in approaching the case of Mar- 
 bury v. Madison, it is to be observed that 
 another matter relating to the Supreme 
 Court had been dealt with. ^ /This act of 
 February 13, 1801, provided that the two 
 terms of the court, instead of being held, as 
 hitherto, in February and August, should 
 thereafter be held in June and December. 
 Accordingly, the court sat in December, 
 1801. It adjourned, as it imagined, to 
 June, 1802. But, on March 8 of that year, 
 Congress, under the new administration, 
 repealed the law of 1801, unseated all the 
 new judges, and reinstated the old system, 
 with its August and February terms. And 
 then, a little later in the year, the August 
 
CONSTITUTIONAL LAW 75 
 
 term of the court was abolished, leaving 
 only one term a year, to begin on the first 
 Monday in February. Thus, since the June 
 term was abolished, and February had then 
 passed, and there was no longer an August 
 or a December term, the court found itself 
 in effect adjourned by Congress from De 
 cember, 1801, to February, 1803 ; and so it 
 had no session during the whole of the year 
 1802. 
 
 If the legislation of 1801 was calculated 
 to show the importance attached by an out 
 going political party to control over the 
 judiciary, that of 1802 might indicate how 
 entirely the incoming party agreed with them, 
 and how well inclined they were to profit by 
 their own opportunities. 
 
 How was it, meantime, with the judiciary 
 itself ? Unfortunately, the Supreme Court 
 had already been drawn into the quarrel. 
 For, at the single December term, in 1801, 
 held under the statute of that year, an appli 
 cation had been made to the court by four 
 persons in the District of Columbia for a 
 rule upon James Madison, Secretary of 
 
76 JOHN MARSHALL 
 
 State, to show cause why a writ of manda*. 
 mus should not issue requiring him to issue 
 to these persons certain commissions as jus 
 tice of the peace, which had been left in 
 Marshall s office undelivered at the time 
 when he ceased to add to his present func 
 tions those of Secretary of State. They had 
 been made out, sealed, and signed, and were 
 supposed to have been found by Madison 
 when he came into office, and to be now 
 withheld by him. This motion was pending 
 when the court adjourned, in December, 
 1801. Of course, a motion for a mandamus 
 to the head of the cabinet, upon a matter of 
 burning interest, must have attracted no lit 
 tle attention on the part of the new adminis 
 tration. Abolishing the August term served 
 to postpone any opportunity for early action 
 by the court, and to remind the judiciary of 
 the limits of its power. 
 
 At last the court came together, in Feb 
 ruary, 1803, and found the mandamus case 
 awaiting its action. It is the first one re 
 ported at that term. Since Marshall had 
 taken his seat, there had as yet been only 
 
CONSTITUTIONAL LAW 77 
 
 five reported cases. All the opinions had 
 been given by him, unless a few lines " by the 
 court " may be an exception ; and according 
 to the new usage by which the Chief Jus 
 tice became, wherever it was possible, the 
 sole organ of the court, Marshall now gave 
 the opinion in Marbury v. Madison. It 
 may reasonably be wondered that the Chief 
 Justice should have been willing to give the 
 opinion in such a case, and especially that 
 he should have handled the case as he did. 
 But he was sometimes curiously regardless 
 of conventions. 
 
 If it be asked what was decided in Mar- 
 bury v. Madison, the answer is that this, 
 and only this, was decided, namely, that the 
 court had no jurisdiction to do what they 
 were asked to do in that case (i. e. to grant 
 a writ of mandamus, in the exercise of their 
 original jurisdiction), because the Constitu 
 tion allowed to the court no such power ; and, 
 although an act of Congress had undertaken 
 to confer this jurisdiction on them, Congress 
 had no power to do it, and therefore the act 
 was void, and must be disregarded by the 
 
78 JOHN MARSHALL 
 
 court. 1 It is the decision upon this point 
 that makes the case famous ; and undoubt 
 edly it was reached in the legitimate exer 
 cise of the court s power. To this important 
 part of the case attention will be called in 
 5 the next chapter. 
 
 Unfortunately, instead of proceeding as 
 courts usually do, the opinion began by 
 passing upon all the points which the denial 
 of its own jurisdiction took from it the right 
 to treat. It was elaborately laid down, in 
 about twenty pages, out of the total twenty- 
 seven which comprise the opinion, that Madi 
 son had no right to detain the commissions ; 
 and that mandamus would be the proper 
 remedy in any court which had jurisdiction 
 to grant it. 
 
 And thus, as the court, by its decision in 
 this case, was sharply reminding the legisla 
 ture of its limitations, so by its dicta, and 
 in this irregular method, it intimated to the 
 President, also, that his department was not 
 exempt from judicial control. In this way 
 
 1 And so the careful headnote of Judge Curtis in 1 
 Curtis s Decisions of the Supreme Court, 368. 
 
CONSTITUTIONAL LAW 79 
 
 two birds were neatly reached with the same 
 stone. 
 
 Marshall made a very noticeable remark 
 in his opinion, seeming to point to the chief 
 executive himself, and not merely to his 
 secretary, when he said, " It is not the office 
 of the person to whom the writ is directed, 
 but the nature of the thing to be done, 
 by which the propriety or impropriety of 
 issuing the mandamus is to be determined ; " 
 a hint that, on an appropriate occasion, 
 the judiciary might issue orders personally 
 to him. This remark got illustration a 
 few years later, in 1807, when the Chief 
 Justice, at the trial of Aaron Burr in Rich 
 mond, ordered a subpoena to the same Presi 
 dent, Thomas Jefferson, directing him to 
 bring thither certain documents. It was a 
 strange conception of the relations of the 
 different departments of the government to 
 each other, to imagine that a subpoena, that 
 is to say an order accompanied with a threat 
 of punishment, was a legitimate judicial 
 mode of communicating with the chief ex 
 ecutive. On Jefferson s part, this order 
 
80 JOHN MARSHALL 
 
 was received with the utmost discontent; 
 and justly. He had a serious apprehension 
 of a purpose to arrest him by force, and 
 was prepared to protect himself. 1 Mean 
 time he sent to the United States Attorney 
 at Richmond the papers called for, but ex 
 plained, with dignity, that while the execu 
 tive was willing to testify in Washington, it 
 could not allow itself to be " withdrawn 
 from its station by any coordinate authority." 
 It was partly to the tendency on Mar 
 shall s part, just mentioned, to give little 
 thought, often, to ordinary conventions, and 
 partly to his kindness of heart, that we 
 should attribute another singular occurrence, 
 the fact that he attended a dinner at the 
 house of an old friend, one of Burr s coun 
 sel, when he knew that Burr was to be pre 
 sent, and when that individual, having previ 
 ously been brought to Richmond under 
 arrest, examined by Marshall, and admitted 
 to bail, was still awaiting the action of the 
 grand jury with reference to further judicial 
 
 1 See Ford s Jefferson, ix. C2 ; draft of a letter to Dis 
 trict Attorney Hay. 
 
CONSTITUTIONAL LAW 81 
 
 proceedings before Marshall himself. He 
 accepted the invitation before he knew that 
 Burr was to be of the company. I have 
 heard from one of his descendants that 
 his wife advised him not to go ; but he 
 thought it best not to seem too fastidious, or 
 to appear to censure his old friend, the host, 
 by staying away. He sat, we are told, at 
 the opposite end of the table from Burr, 
 had 110 communication with him, and went 
 away early. But we must still wonder at an 
 act which he himself afterwards much re 
 gretted. 
 
CHAPTER IV 
 MARSHALL S CONSTITUTIONAL OPINIONS 
 
 THIS is not the place for any detailed 
 examination of Marshall s decisions. But 
 it would be a strange omission to leave out 
 all consideration of what played so great a 
 part in his life. I must draw, therefore, 
 upon the patience of the reader, while some 
 points are mentioned relating to that class 
 of his opinions which is at once the most 
 | important and of the widest interest, viz., 
 | those given in constitutional cases. If these 
 matters seem to any reader dull or unintelli 
 gible, he must be allowed full liberty to pass 
 j them by ; but I cannot wholly omit them. 
 
 The keynote to Marshall s leading consti 
 tutional opinions is that of giving free 
 scope to the power of the national gov 
 ernment. These leading opinions may be 
 divided into three classes : First, such as 
 discuss the nature and reach of the Federal 
 
CONSTITUTIONAL OPINIONS S3 
 
 Constitution, and the general relation of the 
 federal government to the States. Of this 
 class, McCulloch v. Maryland, probably his 
 greatest opinion, is the chief illustration. 
 Second, those cases which are concerned 
 with the specific restraints and limitations 
 upon the States. To this class may be 
 assigned Fletcher v. Peck, the bankruptcy 
 cases of Sturgis v. Crowninshield and Ogden 
 v. Saunders, and Dartmouth College v. 
 Woodward. Third, such as deal with the 
 general theory and principles of constitu 
 tional law. There is little of this sort ; 
 except as it is incidentally touched, perhaps 
 the only case is Marbury v. Madison. 
 
 If we look at these great cases merely 
 with reference to their effect upon the his 
 tory and development of the country, they 
 are of the very first importance. When one 
 names Marbury v. Madison, the first case 
 where the Supreme Court held an act of 
 Congress invalid, and the only one in Mar 
 shall s time ; Fletcher v. Peck and Dart 
 mouth College v. Woodward, where legisla 
 tive grants and an act of incorporation are 
 
84 JOHN MARSHALL 
 
 held to be contracts, protected by the United 
 States Constitution against state legislation 
 impairing their obligation ; and New Jersey v. 
 Wilson, holding that a legislative exemption 
 from taxation is also a contract protected in 
 the same way ; one sees the tremendous im 
 portance of the decisions. 
 
 Of course we are not to confound this 
 powerful effect of a judgment, or the moral 
 approbation with which we may be inclined 
 to view it, with the intrinsic merit of the 
 reasoning or the legal soundness of the con 
 clusions. It is not uncommon to speak of 
 the reasoning in Marbury v. Madison and 
 Dartmouth College v. Woodward with the 
 greatest praise. But neither of these opin 
 ions is entitled to rank with Marshall s great 
 est work. The very common view to which 
 I have alluded is partly referable to the fal 
 lacy which Wordsworth once remarked upon 
 when a friend mentioned " The Happy War 
 rior" as being the greatest of his poems. 
 " No," said the poet, " you are mistaken ; 
 your judgment is affected by your moral 
 approval of the lines." 
 
CONSTITUTIONAL OPINIONS 85 
 
 If we regard at once the greatness of 
 the questions at issue in the particular 
 case, the influence of the opinion, and 
 the large method and clear and skillful 
 manner in which it is worked out, there is 
 nothing so fine as the opinion in McCulloch 
 v. Maryland, given at the February term, 
 1819. The questions were, first, whether 
 the United States could constitutionally in 
 corporate a bank ; and, second, if it could, 
 whether a State might tax the operations of 
 the bank ; as, in this instance, by requiring 
 it to use stamped paper for its notes. The 
 bank was sustained and the tax condemned. 
 
 In working this out, it was laid down 
 that while the United States is merely a 
 government of enumerated powers, and these 
 do not in terms include the granting of an 
 incorporation, yet it is a government whose 
 powers, though limited in number, are in 
 general supreme, and also adequate to the 
 great national purposes for which they are 
 given ; that these great purposes carry with 
 them the power of adopting such means, not 
 prohibited by the Constitution, as are fairly 
 
86 JOHN MARSHALL 
 
 I conducive to the end ; and that incorporat 
 ing a bank is not forbidden, and is useful 
 
 for several ends. Further, the paramount 
 relation of the national government, whose 
 valid laws the Constitution makes the su 
 preme law of the land, forbids the States to 
 tax, or to " retard, impede, burden, or in 
 
 : any way control " the operations of the gov 
 ernment in any of its instrumentalities. 
 
 This was the opinion of a unanimous 
 court, in which five out of the seven judges 
 had been nominated by a Republican Presi 
 dent. But it caused great excitement at 
 the South. On March 24, 1819, Marshall 
 wrote from Richmond to Judge Story : " Our 
 opinion in the bank case has roused the 
 sleeping spirit of Virginia, if indeed it ever 
 sleeps. It will, I understand, be attacked 
 in the papers with some asperity, and as 
 those who favor it never write for the 
 public it will remain undefended, and of 
 course be considered as damnably heretical^ 
 Again, two months later, " The opinion in 
 the bank case continues to be denounced by 
 the Democracy of Virginia. ... If the prin- 
 
CONSTITUTIONAL OPINIONS 87 
 
 ciples which have been advanced on this 
 occasion were to prevail the Constitution 
 would be converted into the old Confedera 
 tion." 
 
 Another great opinion, of the same class, 
 and also bitterly attacked, was given in the 
 case of Cohens v. Virginia, in 1821. This 
 case came up on a writ of error from a local 
 court at Norfolk. Cohens had been con 
 victed of selling lottery tickets there, con 
 trary to the statute of Virginia. He had set 
 up as a defense an act of Congress provid 
 ing for drawing lotteries in the city of 
 Washington, and insisted that this author 
 ized his selling tickets in Virginia. When 
 the case reached the Supreme Court of the 
 United States, the counsel for the State first 
 denied the jurisdiction of that court, on the 
 ground, among others, that the Constitution 
 allowed no such appeal from a state court, 
 and that the Judiciary Act of 1789 was un 
 constitutional in purporting to authorize it. 
 In an elaborate opinion by Marshall, one of 
 his greatest efforts, these contentions were 
 negatived. When afterwards, the case came 
 
fc-t JOHN MARSHALL 
 
 to be argued on the merits, the decision 
 below was sustained, on the ground that the 
 act of Congress did not purport to author 
 ize the sale of tickets in any State which for 
 bade the sale of them. 
 
 Here again the court was unanimous ; 
 and it was composed of the same judges who 
 decided McCulloch v. Maryland. But the 
 reception of Cohens v. Virginia at the South 
 was even worse than that accorded the 
 other case. Judge Roane, of the Court of 
 Appeals in Virginia, attacked the opinion 
 anonymously in the newspapers, with what 
 Marshall called "coarseness and malig- 
 jnity." Jefferson, also, bitterly objected to it. 
 Nf Of two other cases belonging in the same 
 class of Marshall s opinions, viz., Gibbons v. 
 Ogden, in 1824, and Brown v. Maryland, in 
 1827, it is enough here to say that they deal 
 with one of the most difficult and perplexed 
 topics of constitutional law, namely, the 
 coordination of the functions of the national 
 and state governments, in regard to the 
 power granted to Congress to regulate for 
 eign and interstate commerce, a subject of 
 
CONSTITUTIONAL OPINIONS 89 
 
 great importance and difficulty, on which the 
 decisions of the Supreme Court are now and 
 long have been involved in much confusion 
 and uncertainty. Gibbons v. Ogden brought 
 into question the constitutionality of a law 
 of New York granting to Fulton, the inven 
 tor, the sole right of navigating the waters 
 of New York by steam. The grant had 
 been sustained by Chancellor Kent and by 
 the New York Court of Appeals ; but these 
 decisions were now overruled in a famous 
 and powerful opinion. In two other cases 
 on this subject, also of great importance, J 
 Marshall gave leading opinions. It may 3 
 fairly be thought that his treatment of the * 
 general question involved in these cases, in- | 
 structive as it was, was yet less fruitful and 
 less far-seeing than in most of his other great 
 cases. 
 
 He was now in a region pretty closely 
 connected with the second class of cases, 
 above named ; a set of cases, where even so . 
 great a man as Marshall erred sometimes, f 
 from interpreting too literally and too nar- | 
 rowly the restraints upon the States. It was 
 
90 JOHN MARSHALL 
 
 natural, in giving full scope to the authority 
 of the general government, that he should 
 be inclined to apply, with their fullest force 
 and operation, these clauses of restraint and 
 prohibition. His great service to the coun 
 try and his own generation was that of 
 planting the national government on the 
 broadest and strongest foundations. That, 
 as he rightly conceived, was the one chief 
 necessity of his time. In doing this, when 
 it came to considering the reach that must 
 also be allowed to the States, and just how 
 the coordination of the two systems should 
 be worked out, probably no one man, no 
 one court, no human wisdom was adequate, 
 then, to mapping it all out. Time alone, 
 and a long succession of men, after some 
 ages of experience, might suffice for that. 
 The wisdom of those who made the Consti 
 tution, as it has lately been said, was mainly 
 shown " in the shortness and generality of 
 its provisions, in its silence, and its absti 
 nence from petty limitations." But, as time 
 went on, definitions and specifications had to 
 be made and applied; silence, abstinence, 
 
CONSTITUTIONAL OPINIONS 91 
 
 generality, were no longer adequate. And 
 in the class of cases, now referred to, great 
 and far-reaching as were the results of Mar 
 shall s labor, and unqualifiedly as they are 
 often praised, one may perceive, as I venture "* 
 to think, a less comprehensive and states- j 
 manlike grasp of the problems and their f 
 essential conditions than are found in some I 
 other parts of his work. 
 
 And so, when the Chief Justice, in 1812, 
 held, without argument, that a grant of land 
 by a State, with a privilege of exemption 
 from taxation, contained a contract against , 
 future taxation, protected, even in the hands 
 of subsequent holders, by the constitutional 
 provisions against impairing the obligation 
 of contracts, something was done which 
 would probably not be done to-day, if the ij 
 question came up for the first time. Cer- j 
 tainly the soundness of the doctrine has been 
 frequently denied by judges of the Supreme 
 court, and it has only survived through the 
 device of construing all grants in the nar 
 rowest manner. " Yielding," says the Court 
 in a recent case, " to the doctrine that im- 
 
92 JOHN MARSHALL 
 
 munity from taxation may be granted, that 
 point being already adjudged, it must be 
 considered as a personal privilege, not ex 
 tending beyond the immediate grantee, un 
 less otherwise so declared in express terms." 
 And again the court has recently remarked 
 on the " well-settled rule that exemptions 
 from taxation are . . . not to be extended 
 beyond the exact and express language used, 
 construed strictissimi juris." 
 
 Again, in Dartmouth College v. Wood- 
 I ward, in 1819, when it was held that a legis 
 lative grant of incorporation was a contract 
 protected by the same clause of the Constitu 
 tion, something was done from which the 
 court was subsequently obliged to recede in 
 an important degree. Acts of incorporation 
 for the manufacture of beer, for carrying on 
 slaughter-houses, for dealing in offal, and 
 for conducting a lottery, a reputable busi 
 ness in 1819, when the Dartmouth College 
 case was decided, such acts as these have 
 been treated by the Supreme Court as not 
 being thus protected. It is held that no 
 legislative body can contract to part with 
 
CONSTITUTIONAL OPINIONS 93 
 
 the full power to provide for the health, 
 morals, and safety of the community. Such I 
 things, it is said, are not the proper subject- : 
 matter of legislative contract, a doctrine 
 which it has been widely thought should, 
 originally, have been applied to all acts of 
 incorporation. " The State," says a distin- i 
 guished judge, and writer on constitutional > 
 law, in speaking of the Dartmouth College 
 doctrine and its development, " was stripped, .} 
 under this interpretation, of prerogatives 
 that are commonly regarded as inseparable < 
 from sovereignty, and might have stood, like 
 Lear, destitute before her offspring, had not 
 the police power been dexterously declared 
 paramount, and used as a means of rescind 
 ing improvident grants." l 
 V In the great bankruptcy cases of Sturgis 
 v. Crowninshield and Ogden v. Saunders, { 
 where it was held, in 1819 and 1827, that 
 the constitutional provision as to impair 
 ing the obligation of contracts forbade the 
 State to enact an insolvency law which 
 should discharge a person from liability on a 
 1 Hare, Am. Const. Law, i. 607. 
 
94 JOHN MARSHALL 
 
 contract made before the law ; and then 
 again that it did not forbid the same thing 
 as touching a contract made after the law, 
 Marshall, who gave the opinion in the first 
 case, put it on a ground equally applicable 
 to the second ; and so, in the second case, 
 gave a dissenting opinion. The obligation 
 of the contract, he said, comes from the 
 agreement of the party ; it does not arise 
 from the law of the State at the time it was 
 made, entering into or operating on the con 
 tract. But this doctrine and this reasoning 
 were justly disallowed. 
 
 Finally, in 1830, in Craig v. Missouri, 
 Marshall gave the opinion that certain cer 
 tificates issued by a State in return for depos 
 its, and intended to circulate as money, were 
 bills of credit ; and as such forbidden by 
 the Constitution. There were three dissent 
 ing opinions; and soon after Marshall s 
 death, a different doctrine was established 
 by the court, wisely it would seem, and 
 has ever since been maintained. V 
 
 Coming now to the tMrd_class_of cases 
 1 See, however, Chancellor Kent in*2 N. Y. Rev. 372. 
 
CONSTITUTIONAL OPINIONS 95 
 
 mentioned above, that which deals with the 
 fundamental conceptions and theory of our 
 American doctrine of constitutional law, 
 Marbury v. Madison is the chief case. In 
 speaking of that case I have purposely de 
 layed until this point any reference to this 
 aspect of it. While, historically, this part 
 of it is what gives the case its chief import 
 ance, yet it occupies only about a quarter of 
 the opinion. 
 
 In outline, the argument there presented 
 is as follows : The question is whether a 
 court can give effect to an unconstitutional 
 act of the legislature. This question is 
 answered, as having little difficulty, by refer 
 ring to a few " principles long and well 
 established." (1) The people, in establishing 
 a written constitution and limiting the pow- j 
 ers of the legislature, intend to control it; \ 
 else the legislature could change the consti 
 tution by an ordinary act. (2) If a superior 
 law is not thus changeable, then an uncon 
 stitutional act is not law. This theory, it 
 is added, is essentially attached to a writ 
 ten constitution. (3) If the act is void, it 
 
96 JOHN MARSHALL 
 
 cannot bind the court. The court lias to 
 say what the law is, and in saying this must 
 judge between the Constitution and the act. 
 Otherwise, a void act would be obligatory ; 
 and this would be saying that constitutional 
 limits upon legislation may be transgressed 
 by the legislature at pleasure, and thus these 
 limits would be reduced to nothing. (4) The 
 language of the Federal instrument gives 
 judicial power in " cases arising under the 
 Constitution." Judges are thus in terms re 
 ferred to the Constitution. They are sworn 
 to support it and cannot violate it. And so, 
 it is said, in conclusion, the peculiar phrase 
 ology of the instrument confirms what is 
 supposed to be essential to all written con 
 stitutions, that a law repugnant to it is void, 
 and that the courts, as well as other depart 
 ments, are bound by the constitution. 
 
 The reasoning is mainly that of Hamil 
 ton, in his short essay of a few years before 
 in the " Federalist." The short and dry 
 treatment of the subject, as being one of 
 no real difficulty, is in sharp contrast with 
 the protracted reasoning of McCulloch v. 
 
CONSTITUTIONAL OPINIONS 97 
 
 Maryland, Cohens v. Virginia, and other 
 great cases ; and this treatment is much to 
 be regretted. Absolutely settled as the 
 general doctrine is to-day, and sound as it 
 is, when regarded as a doctrine for the 
 descendants of British colonists, there are 
 grave and far-reaching considerations 
 such, too, as affect to-day the proper admin 
 istration of this extremely important power 
 which are not touched by Marshall, and 
 which must have commanded his attention 
 if the subject had been deeply considered 
 and fully expounded according to his later 
 method. His reasoning does not answer 
 the difficulties that troubled Swift, after 
 wards chief justice of Connecticut, and 
 Gibson, afterwards chief justice of Penn 
 sylvania, and many other strong, learned, 
 and thoughtful men ; not to mention Jeffer 
 son s familiar and often ill-digested objec 
 tions. 
 
 It assumes as an essential feature of a 
 written constitution what does not exist in 
 any one of the written constitutions of 
 Europe. It does not remark the grave dis- 
 
98 JOHN MARSHALL 
 
 tinction between the power of disregarding 
 the act of a coordinate department, and the 
 action of a federal court in dealing thus 
 
 with the legislation of the local States; a 
 distinction important in itself, and observed 
 under the written constitutions of Europe, 
 
 j which, as I have said, allow this power in 
 
 : the last sort of case, while denying it in the 
 
 | other. 
 
 Had Marshall dealt with this subject after 
 the fashion of his greatest opinions he must 
 also have considered and passed upon cer 
 tain serious suggestions arising out of the 
 arrangements of our own constitutions and 
 the exigencies of the different departments. 
 All the departments, and not merely the 
 judges, are sworn to support the Constitu 
 tion. All are bound to decide for them 
 selves, in the first instance, what this instru 
 ment requires of them. None can have help 
 from the courts unless, in course of time, 
 some litigated case should arise; and of 
 some questions it is true that they never 
 can arise in the way of litigation. What 
 was Andrew Johnson to do when the Kecon- 
 
CONSTITUTIONAL OPINIONS 99 
 
 struct ion Acts of 1867 had been passed over 
 his veto by the constitutional majority, while 
 his veto had gone on the express ground, 
 still held by him, that they were unconsti 
 tutional? He had sworn to support the 
 Constitution. Should he execute an enact 
 ment which was contrary to the Constitution, 
 and so void? Or should he say, as he did 
 say to the court, through his Attorney-Gen 
 eral, that "from the moment [these laws] 
 were passed over his veto, there was but one 
 duty, in his estimation, resting upon him, 
 and that was faithfully to carry out and 
 execute these laws " ? 1 And why is he to 
 say this ? 
 
 Again, what is the House of Representa 
 tives to do when a treaty, duly made and 
 ratified by the constitutional authority, 
 namely, the President and Senate, comes 
 before it for an appropriation of money to 
 carry it out? Has the House, under these 
 circumstances, anything to do with the ques 
 tion of constitutionality? If it thinks the 
 treaty unconstitutional, and so void, can it 
 
 1 Mississippi v. Johnson, 4 Wallace, 475, 492 (1866). 
 
100 JOHN MARSHALL 
 
 \ vote to carry it out ? If it can, how is this 
 
 ] justified? 
 
 Is the situation necessarily different when 
 a court is asked to enforce a legislative act ? 
 The courts are not strangers to the case of 
 political questions, where they must refuse 
 to interfere with the acts of the other 
 departments, as in the case relating to 
 Andrew Johnson just referred to ; and in 
 dealing with what are construed to be merely 
 directory provisions of the Constitution ; and 
 with the cases, well approved in the Su 
 preme Court of the United States, where 
 courts refuse to consider whether provisions 
 of a constitution have been complied with, 
 which require certain formalities in passing 
 laws, accepting as final the certificate of 
 the officers of the political departments. A 
 question, passed upon by those departments, 
 is thus refused any discussion in the judicial 
 forum, on the ground, to quote the language 
 of the Supreme Court, that "the respect 
 due to coequal and independent depart 
 ments requires the judicial department to 
 act upon this assurance." 
 
CONSTITUTIONAL OPINIONS 101 
 
 So far as any necessary conclusion is con 
 cerned, it might fairly have been said, with 
 us, as it is said in Europe, that the real 
 question in all these cases is not whether 
 the act is constitutional, but whether its 
 constitutionality can properly be brought in 
 question before a given tribunal. Could 
 Marshall have had to deal with this great 
 question, in answer to Chief Justice Gib 
 son s powerful opinion in Eakiii v. Raub, in 
 1825, 1 instead of deciding it without being 
 helped or hindered by any adverse argument 
 at all, as he did, we should have had a far 
 higher exhibition of his powers than the case 
 now affords. 2 
 
 1 12 Serg. & Rawle, 330 ; s.c.l Thayer s Const. Cases, 
 133. 
 
 2 As to this general subject see " Origin and Scope of 
 the American Doctrine of Constitutional Law," 7 Har 
 vard Law Review, 129. Compare the remark of Lord 
 John Russell : " Every political constitution, in which dif 
 ferent bodies share the supreme power, is only enabled to 
 exist by the forbearance of those among whom this power 
 is distributed." I quote this from the motto of Woodrow 
 Wilson s fifth chapter in his Congressional Government. 
 
CHAPTER V 
 
 THE WORKING OF OUR SYSTEM OF CON 
 STITUTIONAL LAW 
 
 I HAVE drawn attention to the immense 
 service that Chief Justice Marshall rendered 
 to his country in the field of constitutional 
 law, and have considered a few of the cases. 
 Since his time not twice the length of his 
 term of thirty-four years has gone by, but 
 more than five times the number of vol 
 umes that sufficed for the opinions of the 
 Supreme Court during his period is required 
 for those of his successors on the bench. 
 Nor does even that proportion indicate the 
 increase in the quantity of the court s busi 
 ness which is referable to this particular 
 part of the law. It has enormously in 
 creased. When one reflects upon the multi 
 tude, variety, and complexity of the ques 
 tions relating to the regulation of interstate 
 commerce, upon the portentous and ever 
 
WORKING OF OUR SYSTEM 103 
 
 increasing flood of litigation to which the 
 Fourteenth Amendment has given rise; 
 upon the new problems in business, govern 
 ment, and police which have come in with 
 steam and electricity, and their ten thou 
 sand applications ; upon the growth of cor 
 porations and of wealth, the changes of 
 opinion on social questions, such as the rela 
 tion of capital and labor, and upon the 
 recent expansions of our control over great 
 and distant islands, we seem to be living 
 in a different world from Marshall s. 
 
 Under these new circumstances, what is 
 happening in the region of constitutional 
 law? Very serious things, indeed. 
 
 The people of the States, when making 
 new constitutions, have long been adding 
 more and more prohibitions and restraints 
 upon their legislatures. The courts, mean 
 time, in many places, enter into the harvest 
 thus provided for them with a light heart, 
 and too promptly and easily proceed to set 
 aside legislative acts. The legislatures are 
 growing accustomed to this distrust, and 
 more and more readily incline to justify it, 
 
104 JOHN MARSHALL 
 
 and to shed the consideration of constitu 
 tional restraints, certainly as concerning 
 the exact extent of these restrictions, turn 
 ing that subject over to the courts; and, 
 what is worse, they insensibly fall into a 
 habit of assuming that whatever they can 
 constitutionally do they may do, as if honor 
 and fair dealing and common honesty were 
 not relevant to their inquiries. 
 
 The people, all this while, become care 
 less as to whom they send to the legislature ; 
 too often they cheerfully vote for men whom 
 they would not trust with an important pri 
 vate affair, and when these unfit persons 
 are found to pass foolish and bad laws, and 
 the courts step in and disregard them, the 
 people are glad that these few wiser gentle 
 men on the bench are so ready to protect 
 them against their more immediate repre 
 sentatives. 
 
 From these causes there has developed a 
 vast and growing increase of judicial inter 
 ference with legislation. This is a very dif 
 ferent state of things from what our fathers 
 contemplated, a century and more ago, in 
 
WORKING OF OUR SYSTEM 105 
 
 framing the new system. Seldom, indeed, 
 as they imagined, under our system, would 
 this great, novel, tremendous power of the 
 courts be exerted, would this sacred ark 
 of the covenant be taken from within the 
 veil. Marshall himself expressed truly one 
 aspect of the matter, when he said in one of 
 the later years of his life: "No questions I 
 can be brought before a judicial tribunal of 
 greater delicacy than those which involve 
 the constitutionality of legislative acts. If 
 they become indispensably necessary to the 
 case, the court must meet and decide them ; 
 but if the case may be determined on other 
 grounds, a just respect for the legislature 
 requires that the obligation of its laws 
 should not be unnecessarily and wantonly 
 assailed." And again, a little earlier than 
 this, he laid down the one true rule of duty 
 for the courts. When he went to Philadel 
 phia at the end of September, in 1831, on 
 a painful errand of which I shall speak, 
 in answering a cordial tribute from the bar 
 of that city he remarked that if he might be 
 permitted to claim for himself and his asso- 
 

 106 JOHN MARSHALL 
 
 ciates any part of the kind things they had 
 said, it would be this, that they had "never 
 sought to enlarge the judicial power beyond 
 its proper bounds, nor feared to carry it to 
 the fullest extent that duty required." 
 
 That is the safe twofold rule ; nor is the 
 first part of it any whit less important than 
 the second ; nay, more ; to-day it is the part 
 which most requires to be emphasized. For 
 just here comes in a consideration of very 
 great weight. Great and, indeed, inestima- 
 
 [ ble as are the advantages in a popular gov 
 ernment of this conservative influence, the 
 power of the judiciary to disregard unconsti 
 tutional legislation, it should be remem 
 bered that the exercise of it, even when 
 
 I unavoidable, is always attended with a seri 
 ous evil, namely, that the correction of legis 
 lative mistakes comes from the outside, and 
 the people thus lose the political experience, 
 and the moral education and stimulus that 
 come from fighting the question out in the 
 ordinary way, and correcting their own errors. 
 If the decision in Munn v. Illinois and the 
 " Granger Cases," twenty-five years ago, and 
 
WORKING OF OUR SYSTEM 107 
 
 in the " Legal Tender Cases," nearly thirty 
 years ago, had been different ; and the legis 
 lation there in question, thought by many to 
 be unconstitutional and by many more to be 
 ill-advised, had been set aside, we should have 
 been saved some trouble and some harm. But 
 I venture to think that the good which came 
 to the country and its people from the vigor 
 ous thinking that had to be done in the polit 
 ical debates that followed, from the infiltra 
 tion through every part of the population of 
 sound ideas and sentiments, from the rous 
 ing into activity of opposite elements, the 
 enlargement of ideas, the strengthening of 
 moral fibre, and the growth of political ex 
 perience that came out of it all, that all 
 this far more than outweighed any evil which 
 ever flowed from the refusal of the court to 
 interfere with the work of the legislature. 
 
 The tendency of a common and easy resort 
 to this great function, now lamentably too 
 common, is to dwarf the political capacity of 
 the people, and to deaden its sense of moral 
 responsibility. It is no light thing to do 
 that. 
 
108 JOHN MARSHALL 
 
 What can be done ? It is the courts that 
 can do most to cure the evil ; and the op 
 portunity is a very great one. Let them 
 resolutely adhere to first principles. Let 
 them consider how narrow is the function 
 which the constitutions have conferred on 
 them, the office merely of deciding liti 
 gated cases; how large, therefore, is the 
 duty intrusted to others, and above all to 
 the legislature. It is that body which is 
 charged, primarily, with the duty of judging 
 of the constitutionality of its work. The 
 constitutions generally give them no author 
 ity to call upon a court for advice ; they 
 must decide for themselves, and the courts 
 may never be able to say a word. Such a 
 body, charged, in every State, with almost all 
 the legislative power of the people, is enti 
 tled to the most entire and real respect ; is 
 entitled, as among all rationally permissible 
 opinions as to what the constitution allows, 
 to its own choice. Courts, as has often been 
 said, are not to think of the legislators, but 
 of the legislature, the great, continuous 
 body itself, abstracted from all the transi- 
 
WORKING OF OUR SYSTEM 109 
 
 tory individuals who may happen to hold its 
 power. It is this majestic representative of 
 the people whose action is in question, a 
 coordinate department of the government, 
 charged with the greatest functions, and in 
 vested, in contemplation of law, with what 
 soever wisdom, virtue, and knowledge the 
 exercise of such functions requires. 
 
 To set aside the acts of such a body, repre 
 senting in its own field, which is the very 
 highest of all, the ultimate sovereign, should 
 be a solemn, unusual, and painful act. Some 
 thing is wrong when it can ever be other 
 than that. And if it be true that the hold 
 ers of legislative power are careless or evil, 
 yet the constitutional duty of the court re 
 mains untouched ; it cannot rightly attempt 
 to protect the people, by undertaking a func 
 tion not its own. On the other hand, by ad 
 hering rigidly to its own duty, the court will 
 help, as nothing else can, to fix the spot where 
 responsibility lies, and to bring down on that 
 precise locality the thunderbolt of popular 
 condemnation. The judiciary, to-day, in 
 dealing with the acts of their coordinate 
 
110 JOHN MARSHALL 
 
 legislators, owe to the country no greater or 
 clearer duty than that of keeping their hands 
 off these acts wherever it is possible to do 
 it. For that course the true course of 
 judicial duty always will powerfully help 
 to bring the people and their representa 
 tives to a sense of their own responsibility. 
 There will still remain to the judiciary an 
 ample field for the determinations of this 
 remarkable jurisdiction, of which our Ameri 
 can law has so much reason to be proud ; a 
 jurisdiction which has had some of its chief 
 illustrations and its greatest triumphs, as in 
 Marshall s time, so in ours, while the courts 
 were refusing to exercise it. 
 
CHAPTER VI 
 
 LETTERS OF MARSHALL 
 
 No systematic attempt seems ever to have 
 been made to collect Marshall s letters. It 
 should be done. Only a few of his family 
 letters have yet found their way into print. 
 One of them, to his wife, is quoted in a pre 
 vious page. In another to her, written on 
 March 9, 1825, referring to the inauguration 
 of President John Quincy Adams, he says : 
 " I administered the oath to the President 
 in the presence of an immense concourse of 
 people, in my new suit of domestic manufac 
 ture. He, too, was dressed in the same 
 manner, though his clothes were made at a 
 different establishment. The cloth is very 
 fine and smooth." 
 
 In a letter of December 7, 1834, 1 to his 
 grandson, "Mr. John Marshall, jr.," he 
 gives the boy some advice about writing 
 
 1 The Nation, February 7, 1901. 
 
112 JOHN MARSHALL 
 
 which is a good commentary on the ex 
 traordinary neatness and felicity, the close 
 fit, of his own clear, compact, and simple 
 style : 
 
 " The man who by seeking embellishment 
 hazards confusion is greatly mistaken in what 
 constitutes good writing. The meaning ought 
 never to be mistaken. Indeed, the readers 
 should never be obliged to search for it. 
 The writer should always express himself so 
 clearly as to make it impossible to misun 
 derstand him. He should be comprehended 
 without an effort. The first step towards 
 writing and speaking clearly is to think 
 clearly. Let the subject be perfectly under 
 stood, and a man will soon find words to 
 convey his meaning to others." 
 
 A letter to James Monroe, dated Kich- 
 mond, December 2, 1784, was written while 
 Marshall was a member of the House of 
 Delegates. He writes : " Not a bill of pub 
 lic importance, in which an individual was 
 not particularly interested, has passed. The 
 exclusive privilege given to Rumsey and his 
 assigns to build and navigate his new in- 
 
LETTERS OF MARSHALL 113 
 
 vented boats is of as much, perhaps more, 
 consequence than any other bill we have 
 passed. We have rejected some which, in 
 my conception, would have been advantage 
 ous to this country. Among these I rank 
 the bill for encouraging intermarriage with 
 the Indians. Our prejudices, however, op 
 pose themselves to our interests, and operate 
 too powerfully for them. . . . 
 
 " I shewed my father [then, probably, 
 living in Kentucky] that part of your letter 
 which respects the western country. He 
 says he will render you every service of the 
 kind you mention which is within his power 
 with a great deal of pleasure. He says, 
 though, that Mr. Humphrey Marshall, a 
 cousin and brother of mine, 1 is better ac 
 quainted with the lands and woidd be better 
 enabled to choose for your advantage than 
 he would. If, however, you wish rather to 
 depend on my father I presume he may avail 
 himself of the knowledge of his son-in-law. 
 I do not know what to say to your scheme of 
 selling out. If you can execute it you will 
 
 1 He married John Marshall s sister. 
 
114 JOHN MARSHALL 
 
 have made a very capital sum ; if you can 
 retain your lands you will be poor during 
 life unless you remove to the western coun 
 try, but you will have secured for posterity 
 an immense fortune. I should prefer the 
 selling business, and if you adopt it I think 
 you have fixed on a very proper price. 
 
 " Adieu. May you be very happy is the 
 wish of your J. MARSHALL." 
 
 In another letter to Monroe, while the 
 latter was Madison s Secretary of State, 
 dated Kichmond, June 25, 1812, just as the 
 war was beginning, he says : 
 
 "On my return to-day from my farm, 
 where I pass a considerable portion of my 
 time in laborious relaxation, I found a 
 copy of the message of the President, of 
 the 1st inst., accompanied by the report 
 of the Committee of Foreign Relations and 
 the declaration of war against Britain, under 
 cover from you. 
 
 " Permit me to subjoin to my thanks for 
 this mark of your attention my fervent wish 
 that this momentous measure may, in its 
 
LETTERS OF MARSHALL 115 
 
 operation on the interest and honor of our 
 country, disappoint only its enemies. 
 
 " Whether my prayer be heard or not, I 
 shall remain with respectful esteem, 
 " Your obedient servant, 
 
 "J. MARSHALL." 
 
 When Marshall went to France as envoy 
 in 1797, he wrote several long and interest 
 ing letters to Washington, acquainting him 
 with whatever foreign intelligence might in 
 terest him. 1 The following passages from 
 the first letter, a very long one, will show 
 the interest of these papers, and the exact 
 ness of the information they convey : 
 
 " THE HAGUE, 15th Sept., 1797. 
 " DEAR SIR, The flattering evidences 
 I have received of your favorable opinion, 
 which have made on my mind an impression 
 only to wear out with my being, added to 
 a conviction that you must feel a deep in 
 terest in all that concerns a country to 
 
 1 These letters were printed in 1897 in the American 
 Hist. Review, ii. 294. I was not aware of their ever hav 
 ing been printed, until after these pages were in type. 
 
116 JOHN MARSHALL 
 
 whose service you have devoted so large a 
 portion of your life, induce me to offer you 
 such occasional communications as, while in 
 Europe, I may be enabled to make, and in 
 duce a hope that the offer will not be 
 deemed an unacceptable or unwelcome in 
 trusion. 
 
 " Until our arrival in Holland we saw 
 only British and neutral vessels. This added 
 to the blockade of the Dutch fleet in the 
 Texel, of the French fleet in Brest, and of 
 the Spanish fleet in Cadiz, manifests the en 
 tire dominion which one nation at present 
 possesses over the seas. By the ships of 
 war which met us we were three times 
 visited, and the conduct of those who came 
 on board was such as would proceed from 
 general orders to pursue a system calculated 
 to conciliate America. Whether this be 
 occasioned by a sense of justice and the ob 
 ligations of good faith, or solely by the 
 hope that the perfect contrast which it ex 
 hibits to the conduct of France may excite 
 keener sensations at that conduct, its effects 
 on our commerce are the same. 
 
LETTERS OF MARSHALL 117 
 
 " The situation of Holland is truly inter 
 esting. Though the face of the country still 
 exhibits a degree of wealth and population 
 still unequaled in any part of Europe, its 
 decline is visible. The great city of Amster 
 dam is in a state of blockade. More than 
 two thirds of its shipping lie unemployed in 
 port. Other seaports suffer, though not in 
 so great a degree. In the mean time the 
 requisitions made upon them are enormous. 
 They have just completed the payment of the 
 100,000,000 of florins (equal to 40,000,000 
 of dollars) stipulated by treaty ; they have 
 sunk, on the first entrance of the French, 
 a very considerable sum in assignats ; they 
 made large contributions in specifics, and 
 they pay, feed, and clothe an army esti 
 mated, as I am informed, at near three 
 times its real number. It is supposed that 
 France has by various means drawn from 
 Holland about 60,000,000 of doUars. This 
 has been paid, in addition to the natural 
 expenditures, by a population of less than 
 2,000,000. Nor, should the war continue, 
 can the contributions of Holland stop here- 
 
118 JOHN MARSHALL 
 
 The increasing exigencies of France must 
 inevitably increase her demands on those 
 within her reach. 
 
 " The political opinions which have pro 
 duced the rejection of the Constitution, and 
 which, as it would seem, can only be enter 
 tained by intemperate and ill-informed minds, 
 unaccustomed to a union of theory and prac 
 tice of liberty, must be associated with a 
 general system which if brought into action 
 will produce the same excesses here which 
 have been so justly deplored in France. 
 The same materials exist, though not in 
 so great a degree. They have their clubs, 
 they have a numerous poor, and they have 
 enormous wealth in the hands of a minority 
 of the nation. On my remarking this to a 
 very rich and intelligent merchant of Am 
 sterdam, and observing that if one class of 
 men withdrew itself from public duties and 
 offices it would be immediately succeeded by 
 another, which would acquire a degree of 
 power and influence that might be exercised 
 to the destruction of those who had retired 
 
LETTERS OF MARSHALL 119 
 
 from society, he replied that the remark was 
 just, but that they relied on France for a 
 protection from those evils which she had 
 herself experienced. That France would 
 continue to require great supplies from Hol 
 land, and knew its situation too well to per 
 mit it to become the prey of anarchy. That 
 Holland was an artificial country acquired 
 by persevering industry, and which could 
 only be preserved by wealth and order. 
 That confusion and anarchy would banish a 
 large portion of that wealth, would dry up 
 its sources, and would entirely disable them 
 from giving France that pecuniary aid she 
 so much needed. That under this impres 
 sion many who, though friendly to the revo 
 lution, saw with infinite mortification French 
 troops garrison the towns of Holland, would 
 now see their departure with equal regret. 
 Thus they willingly relinquished national in 
 dependence for individual safety. What a 
 lesson to those who would admit foreign in 
 fluence into the United States! "... 
 
 The condition of affairs in Paris at that 
 time is illustrated by the fact that Marshall s 
 
120 JOHN MARSHALL 
 
 later letters, written from there, were not 
 signed ; and that they allude to the action of 
 himself and his associates in the third per 
 son. Thus, writing from Paris, October 24, 
 1797, in the character of an anonymous pri 
 vate American to an unnamed correspond 
 ent, he says : 
 
 " Causes which I am persuaded you have 
 anticipated forbid me to allow that free 
 range of thought and expression which could 
 alone apologize for the intrusive character 
 my letters bear. Having, however, offered 
 what I cannot furnish, I go on to substi 
 tute something else perhaps not worth re 
 ceiving. . . . 
 
 " Our ministers have not yet, nor do they 
 seem to think it certain that they will be 
 received. Indeed they make arrangements 
 which denote an expectation of returning to 
 America immediately. The captures of our 
 vessels seem to be only limited by the ability 
 to capture. That ability is increasing, as 
 the government has let out to hardy adven 
 turers the national frigates. Among those 
 who plunder us, who are most active in this 
 
LETTERS OF MARSHALL 121 
 
 infamous business, and most loud in vocif 
 erating criminations equally absurd and un 
 true, are some unprincipled apostates who 
 were born in America. The sea rovers by 
 a variety of means seem to have acquired 
 great influence in the government. This in 
 fluence will be exerted to prevent an accom 
 modation between the United States and 
 France, and to prevent any regulations 
 which may intercept the passage of the 
 spoils they have made on our commerce, to 
 their pockets. The government, I believe, 
 is but too well disposed to promote their 
 views." 
 
 In a letter to Judge Peters, of Philadel 
 phia, dated November 23, 1807, just after 
 the Burr trial, after thanking his correspond 
 ent for a volume of " Admiralty Reports," 
 he has something to say of that case : 
 
 " I have as yet been able only to peep 
 into the book, not to read many of the cases. 
 I received it while fatigued, and occupied 
 with the most unpleasant case which has 
 ever been brought before a judge in this or, 
 perhaps, in any other country wlu ch affected 
 
122 JOHN MARSHALL 
 
 to be governed by laws ; since the decision 
 of which I have been entirely from home. 
 The day after the commitment of Colonel 
 Burr for a misdemeanor I galloped to the 
 mountains, whence I only returned in time 
 to perform my North Carolina circuit, which 
 terminates just soon enough to enable me to 
 be here to open the court for the ancient 
 dominion. Thus you perceive I have suffi 
 cient bodily employment to prevent my mind 
 from perplexing itself about the attentions 
 paid me in Baltimore and elsewhere. I wish 
 I could have had as fair an opportunity to 
 let the business go off as a jest here as you 
 seem to have had in Philadelphia; but it 
 was most deplorably serious, and I could not 
 give the subject a different aspect by treat 
 ing it in any manner which was in my power. 
 I might, perhaps, have made it less serious 
 to myself by obeying the public will, instead 
 of the public law, and throwing a little more 
 of the sombre upon others." 
 
CHAPTER VII 
 
 MARSHALL AS A CITIZEN AND A NEIGHBOR 
 
 THERE is more to be said of Marshall s 
 private and personal life. After he went on 
 the bench, his principal non- judicial work, in 
 the nature of public service, seems to have 
 been writing the "Life of Washington," 
 with the later revision and reconstruction of 
 that work, and his activity in a few mat 
 ters of not too partisan a sort, such as were 
 likely to engage the attention of a public- 
 spirited citizen. 
 
 In 1813, at a meeting of the citizens of 
 Richmond, he was appointed member of a 
 Committee of Vigilance, to aid in defending 
 the city against attack from the British. On 
 June 28 he made a report, for a sub-commit 
 tee, that it was inexpedient to undertake to 
 fortify the city. After stating the topogra 
 phical and other reasons for such an opinion, 
 the report goes on thus : " Your committee 
 
124 JOHN MARSHALL 
 
 are too conscious of their destitution of 
 professional skill to advance with any con 
 fidence the opinion they have formed ; but 
 the resolution under which they act having 
 made it their duty to give an opinion, they 
 say, though with much diffidence, that they 
 do not think any attempt to fortify the city 
 advisable. It is to be saved by operations 
 in the open field, by facing the enemy with a 
 force which may deter him from any attempt 
 to penetrate the interior of our country, and 
 which may impress him with the danger of 
 separating himself from his ships. If this 
 protection cannot be afforded, Kichmond 
 must share the fate of other places which 
 are in similar circumstances. Throughout 
 the world, open towns belong to the army 
 which is master of the country. ... If the 
 militia be put into the best condition for 
 service, if the light artillery be well manned 
 and supplied with horses, so as to move with 
 celerity to any point where its services may 
 be required; if the cavalry be kept entire 
 and in active service; if the precaution of 
 supplying in sufficient quantity all the im- 
 
AS CITIZEN AND NEIGHBOR 125 
 
 plements of war be taken, your committtee 
 hope and believe that this town will have no 
 reason to fear the invading foe." 1 
 
 In those efforts on the part of some of 
 the leaders of Virginia and the South, early 
 in the century, to rid themselves of slavery, 
 to which we at the North have never done 
 sufficient justice, Marshall took an active 
 part. 
 
 The American Colonization Society was 
 organized in 1816 or 1817, with Bushrod 
 Washington for president. In 1823 an aux 
 iliary society was organized at Richmond, of 
 which Marshall was president, an office which 
 he held nearly or quite up to the time of his 
 death. It is interesting to observe that one 
 of the plans for colonization was to have 
 worked out the abolition of slavery in Vir 
 ginia in the year 1901. Of slavery Mar 
 shall wrote to a friend, in 1826 : "I concur 
 with you in thinking that nothing portends 
 more calamity and mischief to the Southern 
 States than their slave population. Yet they 
 seem to cherish the evil, and to view with 
 1 The Virginia Magazine of History, vii. 233. 
 
126 JOHN MARSHALL 
 
 immovable prejudice and dislike everything 
 which may tend to diminish it. I do not 
 wonder that they should resist any attempt, 
 should one be made, to interfere with the 
 rights of property, but they have a feverish 
 jealousy of measures which may do good 
 without the hazard of harm, that, I think, 
 very unwise." 
 
 In 1828, Marshall presided, in Virginia, 
 over a convention to promote internal im 
 provements. On this subject he held and 
 freely expressed views, such as are now gen 
 erally entertained, as to the power of the 
 general government, and the expediency of 
 exerting them. 1 
 
 In 1829, he allowed himself to be elected 
 to the Virginia convention for revising the 
 state constitution, and took an active part in 
 the debates. " Tall, in a long surtout of 
 blue, with a face of genius and an eye of 
 fire," is the description that is given of him 
 in the convention. On several questions he 
 influenced greatly the course of the conven 
 tion, especially in continuing, for a score of 
 
 1 Chancellor Kent in New York Eeview, 348, 349. 
 
AS CITIZEN AND NEIGHBOR 127 
 
 years to come, the judicial tenure of office 
 during good behavior. 
 
 Marshall s membership of the society of 
 Free Masons is sometimes spoken of. It 
 should be said that he lived to condemn that 
 organization. During the political excite 
 ment which followed the abduction of Mor 
 gan, he was asked for~mlormation as to 
 some praise of Freemasonry which had been 
 publicly attributed to him, and replied, in 
 October, 1833, that he was not particularly 
 interested in the anti-masonic excitement. 
 "The agitations which convulse the North 
 did not pass the Potomac. Consequently 
 ... I felt no inclination to volunteer in a 
 distant conflict, in which the wounds that 
 might be received would not be soothed by 
 the consoling reflection that he suffered in 
 the performance of a necessary duty." And 
 he added that he had " never affirmed that 
 there was any positive good or ill in the 
 institution itself." This cautious letter is 
 illustrated by an earlier one, in July, 1833, 
 in which, writing confidentially to Edward 
 Everett, he says that he became a Mason 
 
128 JOHN MARSHALL 
 
 soon after he entered the army, and after 
 wards continued in the society because his 
 neighbors did. " I followed the crowd for a 
 time, without attaching the least importance 
 to its object or giving myself the trouble to 
 inquire why others did. It soon lost its 
 attraction, and though there are several 
 lodges in the city of Richmond, I have not 
 been in one of them for more than forty 
 years, except on an invitation to accompany 
 General Lafayette, nor have I been a mem 
 ber of one of them for more than thirty. It 
 was impossible not to perceive the useless 
 pageantry of the whole exhibition." And he 
 adds that he has become convinced "that 
 the institution ought to be abandoned, as 
 one capable of producing much evil and 
 incapable of producing any good which 
 might not be effected by safe and open 
 means." l 
 
 As to Marshall s religious affiliations, he 
 was a regular and devoted attendant, all his 
 life, of the Episcopal Church, in which he 
 
 1 Anti-masonic Pamphlets, Harvard College Library, 
 No. 12, p. 18 ; ib. No. 9. 
 
AS CITIZEN AND NEIGHBOR 129 
 
 was brought up ; taking an active part in 
 the services and the responses, and kneeling 
 in prayer, we are told, even when the pews 
 were so narrow that his tall form had to be 
 accommodated by the projection of his feet 
 into the aisle. His friend, Bishop Meade, 
 the Episcopal bishop of Virginia, states that 
 he was never a communicant in that church ; 
 and he quotes a letter from an Episcopal 
 clergyman who often visited Mrs. Harvie, 
 Marshall s only daughter, in her last illness, 
 and who reports from her the statement 
 that, during the last months of his life, he 
 told her "that the reason why he never 
 communed was that he was a Unitarian in 
 opinion, though he never joined their soci 
 ety." It is added, however, in the same 
 letter, that Mrs. Harvie, a person " of the 
 strictest probity, the most humble piety, and 
 the most clear and discriminating mind," 
 also said that, during these last months, 
 Marshall read Keith on Prophecy, and was 
 convinced by that work, and the fuller in 
 vestigation to which it led, of the supreme 
 divinity of Jesus, and wished to commune, 
 
130 JOHN MARSHALL 
 
 but thought it his duty to do it publicly ; 
 and while waiting for the opportunity, died. 
 
 The reader of such a statement seems 
 to perceive or to conjecture an anxiety to 
 relieve the memory of the Chief Justice of 
 an opprobrium. y\ Whatever the exact fact 
 may be about this late change in opinion, 
 there is little occasion to be surprised that 
 Marshall shared, during his active life, the 
 opinions of his friend Judge Story. The 
 genuineness and the simplicity of Marshall s 
 lifelong piety are indicated by another state 
 ment reported from Mrs. Harvie : " Her 
 father told her that he never went to bed 
 without concluding his prayer with those 
 which his mother taught him when a child, 
 viz. the Lord s prayer and the prayer begin 
 ning, c Now I lay me down to sleep. " 
 
 Marshall was a man of vigorous physique. 
 " He was always," says a descendant, 1 " de 
 voted to walking, but more especially before 
 breakfast in the early morning. A venerable 
 professor I met in Washington told me that, 
 when he was a boy, regularly every morning 
 1 Mrs. Hardy, 8 Green Bag, 487. 
 
AS CITIZEN AND NEIGHBOR 131 
 
 at seven o clock, when he was on his way to 
 school, he met the Chief Justice returning 
 from a long walk. He walked rapidly al 
 ways. Hon. Horace Binney says: After 
 doing my best one morning to overtake 
 Chief Justice Marshall, in his quick march 
 to the Capitol, when he was nearer to eighty 
 than seventy, I asked him to what cause in 
 particular he attributed that strong and 
 quick step, and he replied that he thought it 
 was most due to his commission in the army 
 of the Revolution, in which he had been a 
 regular foot practitioner for six years. 
 
 We often hear of the Chief Justice at his 
 " Quoit Club." He was a famous player at 
 quoits. A club had been formed by some 
 of the early Scotch settlers of Eichmond, 
 and it came to include among its members 
 leading men of the city, such as Marshall, 
 Wirt, Nicholas, Call, Munford, and others. 
 Chester Harding, the artist who painted the 
 full-length portrait of Marshall that hangs 
 in the Boston Athenreum, tells us of see 
 ing him at the Quoit Club. Fortunately, 
 language does not, like paint, limit the artist 
 
132 JOHN MARSHALL 
 
 to a single moment of time. He gives us 
 the Chief Justice in action. Marshall was 
 then attending the Virginia Constitutional 
 Convention, which sat from October, 1829, 
 to January, 1830. The Quoit Club used to 
 meet every week in a beautiful grove, about 
 a mile from the city. Harding went early. 
 " I watched," he says, " for the coming of 
 the old chief. He soon approached, with 
 his coat on his arm and his hat in his hand, 
 which he was using as a fan. He walked 
 directly up to a large bowl of mint julep, 
 which had been prepared, and drank off a 
 tumblerful of the liquid, smacking his lips, 
 and then turned to the company with a 
 cheerful How are you, gentlemen ? He 
 was looked upon as the best pitcher of the 
 party, and could throw heavier quoits than 
 any other member of the club. The game 
 began with great animation. There were 
 several ties ; and before long I saw the great 
 Chief Justice of the United States down on 
 his knees, measuring the contested distance 
 with a straw, with as much earnestness as if 
 it had been a point of law ; and if he proved 
 
AS CITIZEN AND NEIGHBOR 133 
 
 to be in the right, the woods would ring 
 with his triumphant shout." 1 
 
 1 In speaking of this same Club, Mr. G. W. Munford 
 says : " We have seen Mr. Marshall, in later times, when 
 he was Chief Justice of the United States, on his hands 
 and knees, with a straw and a penknife, the blade of the 
 knife stuck through the straw, holding it between the 
 edge of the quoit and the hub ; and when it was a very 
 doubtful question, pinching or biting off the ends of the 
 straw, until it would fit to a hair." 
 
 James K. Paulding has preserved an entertaining ac 
 count of a game, in 1820, when Jarvis, the artist, was 
 present, playing, apparently on the same side with the 
 Chief Justice. " I remember," he says, " in the course of 
 the game, and when the parties were nearly at a tie, that 
 some dispute arose as to the quoit nearest the meg. The 
 Chief Justice was chosen umpire between the quoit be 
 longing to Jarvis and that of Billy Haxall. The judge 
 bent down on one knee, and with a straw essayed the de 
 cision of this important question on which the fate of the 
 game in a great measure depended. After nicely mea 
 suring, and frequently biting off the end of the straw, 
 Gentlemen, said he, you will perceive this quoit would 
 have it, but the rule of the game is to measure from the 
 visible iron. Now that clod of dirt hides almost half an 
 inch. But, then he has a right to the nearest part of the 
 meg ; and here, as you will perceive, is a splinter, which 
 belongs to and is part of the meg, as much as the State 
 of Virginia is a part of the Union. This is giving Mr. 
 Haxall a great advantage ; but, notwithstanding, in my 
 opinion, Jarvis has it by at least the sixteenth part of an 
 inch, and so I decide, like a just judge, in my own favor. " 
 2 LippincotCs Magazine, 023, 026. It is said that he was 
 often appointed thus to be judge in his own case. 
 
134 JOHN MARSHALL 
 
 An entertaining account has been pre 
 served 1 of a meeting of the club, held, ap 
 parently, while Marshall was still at the 
 bar, at which he and Wickham a leading 
 Virginia lawyer, one of the counsel of Aaron 
 Burr were the caterers. At * the table 
 Marshall announced that at the last meeting 
 two members had introduced politics, a for 
 bidden subject, and had been fined a basket 
 of champagne, and that this was now pro 
 duced, as a warning to evil-doers; as the 
 club seldom drank this article, they had no 
 champagne glasses, and must drink it in 
 tumblers. Those who played quoits retired, 
 after a while, for a game. Most of the 
 members had smooth, highly polished brass 
 quoits. But Marshall s were large, rough, 
 heavy, and of iron, such as few of the mem 
 bers could throw well from hub to hub. 
 Marshall himself threw them with great 
 success and accuracy, and often " rang the 
 meg." On this occasion Marshall and the 
 Rev. Mr. Blair led the two parties of play 
 ers. Marshall played first, and rang the 
 1 See The Two Parsons, by G. W. Munford. 
 
AS CITIZEN AND NEIGHBOR 135 
 
 meg. Parson Blair did the same, and his 
 quoit came down plumply on top of Mar 
 shall s. There was uproarious applause, 
 which drew out all the others from the din 
 ner ; and then came an animated contro 
 versy as to what should be the effect of this 
 exploit. They all returned to the table, 
 had another bottle of champagne, and lis 
 tened to arguments, one from Marshall, pro 
 se, and one from Wickham for Parson Blair. 
 The company decided against Marshall. His 
 argument is a, humorous companion piece to 
 any one of his elaborate judicial opinions. 
 He began by formulating the question, 
 " Who is winner when the adversary quoits 
 are on the meg at the same time?" He 
 then stated the facts, and remarked that the 
 question was one of the true construction 
 and application of the rules of the game. 
 The one first ringing the meg has the ad 
 vantage. No other can succeed who does 
 not begin by displacing this first one. The 
 parson, he willingly allowed, deserves to rise 
 higher and higher in everybody s esteem; 
 but then he must n t do it by getting on 
 
136 JOHN MARSHALL 
 
 another s back in this fashion. That is 
 more like leapfrog than quoits. Then, 
 again, the legal maxim is, Cujus est solum, 
 ejus est usque ad ccdum, his own right as 
 first occupant extends to the vault of hea 
 ven; no opponent can gain any advantage 
 by squatting on his back. He must either 
 bring a writ of ejectment, or drive him out 
 vi et armis. And then, after further argu 
 ment of the same sort, he asked judgment, 
 and sat down amidst great applause. 
 
 Mr. Wickham then rose, and made an 
 argument of a similar pattern. No rule, he 
 said, requires an impossibility. Mr. Mar 
 shall s quoit is twice as large as any other ; 
 and yet it flies from his arm like the iron 
 ball at the Grecian games from the arm of 
 Ajax. It is an iron quoit, unpolished, jagged, 
 and of enormous weight. It is impossible 
 for an ordinary quoit to move it. With 
 much more of the same sort, he contended 
 that it was a drawn game. After very ani 
 mated voting, designed to keep up the uncer 
 tainty as long as possible, it was so decided. 
 Another trial was had, and Marshall clearly 
 won. 
 
AS CITIZEN AND NEIGHBOR 137 
 
 All bis life he played this game. There 
 is an account of a country barbecue in the 
 mountain region, where a casual guest saw 
 him, then an old man, emerge from a thicket 
 which bordered a brook, carrying a pile of 
 flat stones as large as he could hold between 
 his right arm and his chin. He stepped 
 briskly up to the company and threw them 
 down. " There ! Here are quoits enough 
 for us all." 
 
 Of Marshall s simple habits, remarkable 
 modesty, and engaging simplicity of con 
 duct and demeanor, every one who knew him 
 speaks. These things were in the grain, 
 and outlasted all the wear and tear of life. 
 " What was it in him which most impressed 
 you ? " asked one of his descendants, now a 
 distinguished judge, 1 of an older relative who 
 had known him. " His humility," was her 
 answer. " With Marshall," wrote President 
 Quincy, "I had considerable acquaintance 
 during the eight years I was member of 
 Congress, from 1805 to 1813, played chess 
 
 1 Mr. Justice Keith, now President of the Virginia 
 Court of Appeals. 
 
138 JOHN MARSHALL 
 
 with him, and never failed to be impressed 
 with the frank, cordial, childlike simplicity 
 and unpretending manner of the man, of 
 whose strength and breadth of intellectual 
 power I was . . . well apprised." 
 
 " Nothing was more usual," we are told, 
 as regards his life in Richmond, "than to 
 see him returning from market, at sunrise, 
 with poultry in one hand and a basket of 
 vegetables in the other." And, again, some 
 one speaks of meeting him on horseback, at 
 sunrise, with a bag of seeds before him, on 
 his way to his farm, three or four miles out 
 of town. It was of this farm that he wrote 
 to James Monroe, his old friend and school 
 mate, about passing so much time in " labo 
 rious relaxation" The italics are his own. 
 
 In speaking of Marshall s personal quali 
 ties and ways, I must quote from those ex 
 quisite passages in Judge Story s address, 
 delivered in the fall of 1835, to the Suffolk 
 bar, in which his own true affection found 
 expression: "Upon a first introduction he 
 would be thought to be cold and reserved ; 
 but he was neither the one nor the other. " It 
 
AS CITIZEN AND NEIGHBOR 139 
 
 was simply a habit of easy taciturnity, watch 
 ing, as it were, his own turn to follow the 
 line of conversation, and not to presume to 
 lead it. ... Meet him in a stage-coach as a 
 stranger, and travel with him a whole day, 
 and you would only be struck with his readi 
 ness to administer to the accommodation of 
 others, and his anxiety to appropriate least 
 to himself. Be with him the unknown guest 
 at an inn, and he seemed adjusted to the 
 very scene ; partaking of the warm welcome 
 of its comforts, whenever found ; and if not 
 found, resigning himself without complaint 
 to its meanest arrangements. . . . He had 
 great simplicity of character, manners, dress, 
 and deportment, and yet with a natural dig 
 nity that suppressed impertinence and si 
 lenced rudeness. His simplicity . . . had an 
 exquisite naivete, which charmed every one, 
 and gave a sweetness to his familiar con 
 versation approaching to fascination. The 
 first impression of a stranger, upon his intro 
 duction to him, was generally that of disap 
 pointment. It seemed hardly credible that 
 such simplicity should be the accompaniment 
 
140 JOHN MARSHALL 
 
 of such acknowledged greatness. The con 
 sciousness of power was not there ; the air 
 of office was not there ; there was no play of 
 the lights or shades of rank, no study of effect 
 in tone or bearing." 
 
 Add to this what Judge Story said from 
 the bench, in receiving the resolutions of 
 the Bar of the Supreme Court after Mar 
 shall s death: "But, above all, he was the 
 ornament of human nature itself, in the 
 beautiful illustrations which his life con 
 stantly presented, of its most attractive 
 graces, and its most elevated attributes." 1 
 
 Of Marshall s* appearance on the bench we 
 have a picture in one of Story s letters from 
 Washington, while he was at the bar. He 
 is writing in 1808, the year after the Burr 
 trial. "Marshall," he says, "is of a tall, 
 slender figure, not graceful or imposing, but 
 erect and steady. His hair is black, his eyes 
 small and twinkling, his forehead rather low, 
 but his features are in general harmonious. 
 His manners are plain, yet dignified ; and an 
 unaffected modesty diffuses itself through all 
 1 10 Petera s Reports, vii. 
 
AS CITIZEN AND NEIGHBOR 141 
 
 his actions. His dress is very simple, yet 
 neat; his language chaste, but hardly ele 
 gant ; it does not flow rapidly, but it seldom 
 wants precision. In conversation he is quite 
 familiar, but is occasionally embarrassed by 
 a hesitancy and drawling. ... I love his 
 laugh, it is too hearty for an intriguer, 
 and his good temper and unwearied patience 
 are equally agreeable on the bench and in 
 the study." 
 
 Daniel Webster, in 1814, while he was a 
 member of Congress from New Hampshire, 
 wrote to his brother : " There is no man in 
 the court that strikes me like Marshall. He 
 is a plain man, looking very much like Colo 
 nel Adams, and about three inches taller. I 
 have never seen a man of whose intellect 
 I had a higher opinion." 
 
 In the year 1808, when Judge Story wrote 
 what has just been quoted, Marshall was 
 sketched in chalk by St. Memin. It is a 
 beautiful portrait, which its present owner, 
 Mr. Thomas Marshall Smith, of Baltimore, 
 John Marshall s great-grandson, has now 
 generously allowed to be copied for the use 
 of the public. 
 
142 JOHN MARSHALL 
 
 It was in 1830 that Chester Harding 
 painted for the Boston Athenaeum the full- 
 length portrait, of which, a little later, he 
 made the replica, afterwards purchased, by 
 subscription, for the Harvard Law School. 
 " I consider it," says Harding, " a good pic 
 ture. 1 I had great pleasure in painting the 
 whole of such a man. . . . When I was ready 
 to draw the figure into his picture, I asked 
 him, in order to save time, to come to my 
 room in the evening. . . . An evening was ap 
 pointed ; but he could not come until after the 
 4 consultation, which lasts until about eight 
 o clock." It will be remembered that the 
 judges, at that time, used to lodge together, 
 in one house. " It was a warm evening," con 
 tinues Harding, " and I was standing 011 my 
 steps waiting for him, when he soon made his 
 appearance, but, to my surprise, without a hat. 
 I showed him into my studio, and stepped 
 
 1 The half-length, sitting portrait of Marshall, in the 
 dining-hall at Cambridge, was painted by Harding-, in 
 1828, for the Chief Justice himself ; and by him given to 
 Judge Story, " to be preserved, when I shall sleep with 
 my fathers, as a testimonial of sincere and affectionate 
 friendship." Story bequeathed it to the college. 
 
AS CITIZEN AND NEIGHBOR 143 
 
 back to fasten the front door, when I en 
 countered [several gentlemen] who knew the 
 judge very well. They had seen him passing 
 by their hotel in his hatless condition, and 
 with long strides, as if in great haste, and 
 had followed, curious to know the cause of 
 such a strange appearance. . . . He said that 
 the consultation lasted longer than he ex 
 pected, and he hurried off as quickly as pos 
 sible to keep his appointment with me." He 
 declined the offer of a hat on his return : 
 " Oh no, it is a warm night ; I shall not need 
 one." 
 
 A good many artists tried their hands on 
 the Chief Justice, and with every sort of 
 result. Some depicted a dull and wooden 
 person, some a worthy but feeble one. Other 
 portraits, commended for their likeness to 
 the original, differ much in what they repre 
 sent. 1 
 
 1 See an interesting article by Mr. Justice Bradley, of 
 the Supreme Court of the United States, on portraits of 
 Marshall, in the Century Magazine for September, 1880, 
 (vol. 38, page 778.) A portrait by Jarvis, valued as a 
 work of art and as a good likeness, is in the possession of 
 Mr. Justice Gray. Mr. Justice Bradley appears to be 
 
144 JOHN MARSHALL 
 
 In tlie written descriptions of him, also, 
 one needs to compare several before he can 
 feel much assurance of the true image. In 
 an anonymous account of him, preserved in 
 Van Santvoord s " Lives of the Chief Jus 
 tices," * the reader seems to perceive the 
 humorous exaggerations of an entertaining 
 and practiced writer, but, taken with due 
 allowance, the description may well be pre 
 served. 
 
 " As to face and figure," says this account, 
 " nature had been equally little at pains to 
 stamp, with any princely effigy of what 
 pleases, the virgin gold of which she had 
 composed his head and heart. Except that 
 his countenance was thoughtful and benig 
 nant, it had nothing about it that would 
 have commanded a second look. Separately 
 his features were but indifferent, jointly 
 they were no more than commonplace. Then 
 as to stature, shape, and carriage, there was 
 
 wrong 1 in saying that there is a full-length of Marshall at 
 Washington and Lee University. There are two portraits 
 of him there, but, as I am assured, no full-length. 
 1 P. 303, n. 
 
AS CITIZEN AND NEIGHBOR 145 
 
 nothing in him that was not the opposite of 
 commanding or prepossessing ; he was tall, 
 yet his height was without the look of either 
 strength or lightness, and gave neither dig 
 nity nor grace. His body seemed as ill as 
 his mind well compacted ; he not only was 
 without proportion, but of members singu 
 larly knit, that dangled from each other and 
 looked half dislocated. Habitually he dressed 
 very carelessly ; in the garb, I should not 
 dare to say in the mode, of the last century. 
 You would have thought he had on the old 
 clothes of a former generation, not made for 
 him by even some superannuated tailor of 
 the period, but gotten from the wardrobe 
 of some antiquated slop-shop of second-hand 
 raiment. Shapeless as he was, he would 
 probably have defied all fitting, by whatever 
 skill of the shears ; judge then how the vest 
 ments of an age when, apparently, coats and 
 breeches were cut for nobody in particular, 
 and waistcoats were almost dressing gowns, 
 sat upon him." 
 
 Such a statement should be supplemented 
 by what one of his family said of him : The 
 
146 JOHN MARSHALL 
 
 descriptions of his dress are greatly exagger 
 ated ; he was regardless of style and fashion, 
 but all those who knew him best testified to 
 the extreme neatness of his attire." x 
 
 1 Mrs. Hardy, quoting her grandmother, in 8 Green 
 Bag, 484. 
 
CHAPTER VIII 
 
 HIS LAST DAYS 
 
 THE year 1831 was a sad one for Mar 
 shall. The greatest apprehensions were felt 
 for his health. " "YVirt," says John Quincy 
 Adams in his diary, on February 13, 1831, 
 " spoke to me, also, in deep concern and 
 alarm at the state of Chief Justice Mar 
 shall s health." In the autumn he went to 
 Philadelphia to undergo the torture of the 
 operation of lithotomy, before the days of 
 ether. It was the last operation performed 
 by the distinguished surgeon, Dr. Physick. 
 Another eminent surgeon, who assisted him, 
 Dr. Randall, has given an account of this 
 occasion, in which he says : 
 
 " It will be readily admitted that, in con 
 sequence of Judge Marshall s very advanced 
 age, the hazard attending the operation, 
 however skillfully performed, was consider 
 ably increased. I consider it but an act of 
 
148 JOHN MARSHALL 
 
 justice, due to the memory of that great and 
 good man, to state that, in my opinion, his 
 recovery was in a great degree owing to his 
 extraordinary self-possession, and to the 
 calm and philosophical views which he took 
 of his case, and the various circumstances 
 attending it. 
 
 " It fell to my lot to make the necessary 
 preparations. In the discharge of this duty 
 I visited him on the morning of the day 
 fixed on for the operation, two hours pre 
 viously to that at which it was to be per 
 formed. Upon entering his room I found 
 him engaged in eating his breakfast. He 
 received me with a pleasant smile upon his 
 countenance, and said : Well, doctor, you 
 find me taking breakfast, and I assure you I 
 have had a good one. I thought it very 
 probable that this might be my last chance, 
 and therefore I determined to enjoy it and 
 eat heartily. I expressed the great plea 
 sure which I felt at seeing him so cheer 
 ful, and said that I hoped all would soon be 
 happily over. He replied to this that he 
 did not feel the least anxiety or uneasiness 
 
HIS LAST DAYS 149 
 
 respecting the operation or its results. He 
 said that he had not the slightest desire to 
 live, laboring under the sufferings to which 
 he was then subjected ; that he was per 
 fectly ready to take all the chances of an 
 operation, and he knew there were many 
 against him ; and that if he could be relieved 
 by it he was willing to live out his appointed 
 time, but if not, would rather die than hold 
 existence accompanied with the pain and 
 misery which he then endured. 
 
 " After he finished his breakfast I admin 
 istered to him some medicine ; he then in 
 quired at what hour the operation would be 
 performed. I mentioned the hour of eleven. 
 He said, 4 Very well, do you wish me now for 
 any other purpose, or may I lie down and 
 go to sleep ? I was a good deal surprised 
 at this question, but told him that if he 
 coidd sleep it would be very desirable. He 
 immediately placed himself upon the bed, 
 and fell into a profound sleep, and continued 
 so until I was obliged to rouse him in order 
 to undergo the operation. He exhibited the 
 same fortitude, scarcely uttering a murmur, 
 
150 JOHN MARSHALL 
 
 throughout the whole procedure, which, from 
 the peculiar nature of his complaint, was 
 necessarily tedious." 
 
 From the patient over a thousand calculi 
 were taken. He had a perfect recovery; 
 nor did the disorder ever return. 1 
 
 On Christmas Day of that year, as I have 
 said, his wife died, the object of his tender- 
 est affection ever since he had first seen her, 
 more than fifty years before. The day be 
 fore she died, she hung about his neck a 
 locket with some of her hair. He wore it 
 always, night and day ; and, by his order, 
 it was the last thing removed from his body 
 when he died. 2 
 
 It was at this period, in 1831 and 1832, 
 
 1 My friend Dr. Horace Howard Furness, of Phila 
 delphia, writes (and allows me to quote) : " I remember 
 hearing my father say that Dr. Physick told him, just 
 after that operation of lithotomy, that he had washed 
 the judge out as clean as a plate, and that he went on 
 to say that after the operation the strictest quiet was en 
 joined, not a muscle was to be moved ; but what was his 
 alarm on his next visit to see Judge Marshall sitting up 
 in bed with paper and pencil on his knees, writing to his 
 wife! " 
 
 2 Marion Harland, Old Colonial Homesteads, 98. 
 
HIS LAST DAYS 151 
 
 that Inman s fine portrait of him, now hang 
 ing in the rooms of the Law Association 
 
 O 
 
 of Philadelphia, was painted, for the bar of 
 that city. A replica which Marshall him 
 self bought for his daughter, is on the walls 
 of the state library in Richmond. This por 
 trait is regarded as the best of those painted 
 in his later life. Certainly it best answers 
 the description of him by an English tra 
 veler, who, seeing him often in the spring 
 of 1835, remarked that "the venerable 
 dignity of his appearance would not suffer 
 in comparison with that of the most re 
 spected and distinguished-looking peer in 
 the British House of Lords." l 
 
 After his recovery, in 1831, Marshall 
 seems to have been in good health down to 
 the early part of 1835. Then, we are told, 
 he suffered " severe contusions " in the 
 stage-coach in returning from Washington. 2 
 
 1 Travels in North America, by Hon. Charles Augustus 
 Murray, " the late Sir Charles Murray, at one time 
 Master of the Household to the Queen, who, as a young 
 man, was attached to the British Legation at Washington." 
 
 - The Spectator, February 9, 1901, p. 199. 
 
 2 Many a " severe contusion " must he have suffered in 
 
152 JOHN MARSHALL 
 
 His health now rapidly declined. He went 
 again for relief to Philadelphia, and died 
 there on July 6, 1835, of a serious disorder 
 of the liver. He had missed from his bed 
 side his oldest son, Thomas, for whom he 
 had been asking. Upon the gravestone of 
 that son, behind the old house at Oakhill, 
 you may read the pathetic tragedy, withheld 
 from his father, that accounts for this ab 
 sence. While hastening to Philadelphia, at 
 the end of June, he was passing through the 
 streets of Baltimore, in the midst of a tem 
 pest, and was killed by the falling of a 
 chimney in the storm. 
 
 The great Chief Justice was carried home 
 with every demonstration of respect and 
 reverence. He was buried by the side of 
 
 those primitive days, from upsets and joltings, in driving 
 every year between Richmond and Washington, some 
 120 miles each way; from Richmond to Raleigh and 
 back, in attending his North Carolina circuit, about 175 
 miles each way ; and between Richmond and Oakhill, 
 his country place, every summer, about 100 miles each 
 way. For instance, in 1812, Cranch, the reporter, re 
 marks that Marshall was not present at the beginning of 
 the term, as he " received an injury by the oversetting 
 of the stage-coach on his journey from Richmond." 
 
HIS LAST DAYS 153 
 
 his wife, in the Shockoe Hill Cemetery in 
 Richmond. There, upon horizontal tablets, 
 are two inscriptions of affecting simplicity, 
 both written by himself. The first runs 
 thus : " John Marshall, Son of Thomas and 
 Mary Marshall, was born the 24th of Sep 
 tember, 1755. Intermarried with Mary 
 Willis Ambler, the 3d of January, 1783. 
 Departed this life the [6th] day of July, 
 1835." The second, thus : " Sacred to the 
 memory of Mrs. Mary Willis Marshall, 
 Consort of John Marshall, Born the 13th of 
 March, 1766. Departed this life the 25th of 
 December, 1831. This stone is devoted to 
 her memory by him who best knew her 
 worth, And most deplores her loss." 
 
 Among the tributes to Chief Justice 
 Marshall which were made in the months 
 that followed his death, and in later times, 
 nothing finer has been said than the heart 
 felt expression of the bar of his own circuit, 
 at Richmond, in November, 1835. The 
 resolutions of Mr. B. Watkins Leigh, unani 
 mously adopted, recalled " the memory of 
 
164 JOHN MARSHALL 
 
 the venerable judge " who had presided there 
 for more than thirty-four years "with such 
 remarkable diligence in office, that until he 
 was disabled by the disease which removed 
 him from life, he was never known to be ab 
 sent from the bench, during term time, even 
 for a day, with such indulgence to coun 
 sel and suitors that everybody s convenience 
 was consulted but his own, with a dig 
 nity, sustained without effort, and appar 
 ently without care to sustain it, to which 
 all men were solicitous to pay due respect, 
 with such profound sagacity, such quick pene 
 tration, such acuteness, clearness, strength, 
 and comprehension of mind, that in his 
 hands the most complicated causes were 
 plain, the weightiest and most difficult, easy 
 and light, with such striking impartiality 
 and justice, and a judgment so sure, as to 
 inspire universal confidence, so that few ap 
 peals were ever taken from his decisions, 
 during his long administration of justice in 
 this court, and those only in cases where he 
 himself expressed doubt, with such mod 
 esty that he seemed wholly unconscious of 
 
HIS LAST DAYS 155 
 
 his own gigantic powers, with such equa 
 nimity, such benignity of temper, such amen 
 ity of manners, that not only none of the 
 judges who sat with him on the bench, but 
 no member of the bar, no officer of the 
 court, no juror, no witness, no suitor, in a 
 single instance, ever found or imagined, in 
 anything said or done, or omitted by him, 
 the slightest cause of offense. 
 
 " His private life was worthy of the ex 
 alted character he sustained in public sta 
 tion. The unaffected simplicity of his man 
 ners ; the spotless purity of his morals ; his 
 social, gentle, cheerful disposition ; his 
 habitual self-denial, and boundless gener 
 osity towards others ; the strength and con 
 stancy of his attachments, his kindness to 
 his friends and neighbors ; his exemplary 
 conduct in the relations of son, brother, hus 
 band, father ; his numerous charities ; his 
 benevolence toward all men, and his ever 
 active beneficence ; these amiable qualities 
 shone so conspicuously in him, throughout 
 his life, that highly as he was respected, 
 he had the rare happiness to be yet more 
 
156 JOHN MARSHALL 
 
 beloved. He was, indeed, a bright example 
 of the true wisdom which consists in the 
 union of the greatest ability and the great 
 est virtue. 
 
 On the west side of the Capitol at Wash 
 ington, midway between the staircases that 
 ascend from the garden to the great build 
 ing, and a little in advance, there is a colos 
 sal bronze figure of Marshall by the sculptor 
 Story, the son of the great man s colleague 
 and friend, placed there in 1884. It is a 
 very noble work of art, worthy of the sub 
 ject and the place. The Chief Justice is 
 sitting, clothed in his judicial robe, in the 
 easy attitude of one engaged in expounding 
 a subject of which he is master. The fig 
 ure is leaning back in the chair with the 
 head slightly inclining forward ; the right 
 arm rests on the arm of the chair, with the 
 hand open and extended ; the left hand, 
 holding a scroll, lies easily on the other arm 
 of the chair. The crossed legs are covered 
 by the gown, while low shoes and buckles, 
 and hair gathered in a queue, speak of life- 
 
HIS LAST DAYS 157 
 
 long habits. The solid and beautiful head, 
 and the grave and collected dignity of the 
 features and the whole composition are very 
 noble, satisfactory, and ideally true. 
 
 The figure, standing, would be ten feet 
 high. It sits seven feet high, and is raised 
 upon a suitable pedestal, decorated with mar 
 ble bas-reliefs of classical design. These, if 
 the truth were told, might well be spared, 
 but the statue itself will fitly commemorate 
 for many ages one of the greatest, noblest, 
 and most engaging characters in American 
 history. 
 
fttoerpibe 
 
 Ebctrotyped and printed by H. O. Houghton & C*. 
 Cambridge, Mass., U.S. A. 
 
14 DAY USE 
 
 RETURN TO DESK FROM WHICH BORROWED 
 
 LOAN DEPT. 
 
 This book is due on the last date stamped below, or 
 
 on the date to which renewed. 
 R< 
 
 F 
 
 
 OEC 7 19658* 
 
 
 iJfll 1984 
 
 LD 21A-50m-4, 60 
 
 General Library 
 
 inr nf ralifn 
 
a / 
 
 - \ YA 04563 
 
 
 / 
 
 Slll^3k 
 &f 
 
 THE UNIVERSITY OF CUIFORDIt LIBRDRY OF THE UNIVER 
 
 A . . . , . 
 
 THE UNIVERSITY OF CUIFORNU LIBRARY OF THE UNIVER!