John Marchal - Chief Justice Secretary of State - A Stan Klos Biography
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Marshall, John, jurist, born in Germantown, Fauquier County, Virginia, 24 September, 1755; died in Philadelphia, Pennsylvania, 6 July, 1835, received from childhood a thorough course of domestic education in English literature, and when he was sufficiently advanced his father procured the services of a private teacher, Reverend James Thompson, an Episcopal clergyman from Scotland, who was afterward minister of Leeds parish. At fourteen years of age John was sent to Westmoreland county, and placed at the school where his father and Washington had been pupils. James Monroe was one of his fellow-students. After remaining there for a year he returned to Oak Hill and continued his classical studies under the direction of Mr. Thompson, but he never had the benefit of a college education.
He began the study of law at the age of eighteen, and used Blackstone's
"Commentaries," then recently published, but he had hardly begun his legal studies when the controversy with the mother country came to a crisis. The tea bill, the Boston port bill, the congress of 1774, followed one another in quick succession, and every question at issue was thoroughly discussed at Oak Hill just at the period of young Marshall's life to make the most indelible impression upon his intellectual and moral character. Military preparations were not neglected. John Marshall joined an independent body of volunteers and devoted himself with much zeal to the training of a company of militia in his neighborhood. Among the first to take the field was Thomas Marshall.
A regiment of minutemen was raised in the summer of 1775 in Culpeper, Orange, and Fauquier counties, of which he was appointed major, and his son , John a lieutenant. On their green hunting-shirts they bore the motto
"Liberty or death !" and on their banner was the emblem of a coiled rattlesnake, with the inscription
"Don't tread on me!" They were armed with rifles, knives, and tomahawks. They had an engagement with Governor Dunmore's forces at Great Bridge on 9 December, in which Lieutenant Marshall showed coolness and skill in handling his men.
After this, in 1776, the father and son were in separate organizations. Thomas Marshall was appointed colonel in the 3d Virginia infantry of the Continental line, and John's company was reorganized and attached to the 11th regiment of Virginia troops, which was sent to join Washington's army in New Jersey. Both were in most of the principal battles of the war until the end of 1779. John was promoted to a captaincy in May, 1779. His company distinguished itself at the battle of the Brandywine. He was engaged in the pursuit of the British and the subsequent retreat at Germantown, was with the army in winter-quarters at Valley Forge, and took part in the actions at Monmouth, Stony Point, and Paulus Hook. His marked good sense and discretion and his general popularity often led to his being selected to settle disputes between his brother officers, and he was frequently employed to act as deputy judge-advocate. This brought him into extensive acquaintance with the officers, and into personal intercourse with
General Washington and Colonel
Alexander Hamilton, an acquaintance that subsequently ripened into sincere regard and attachment The term of enlistment of his regiment having expired, Captain Marshall, with other supernumerary officers, was ordered to Virginia to take charge of any new troops that might be raised by the state, and while he was detained in Richmond during the winter of 1779-'80, awaiting the action of the legislature, he availed himself of the opportunity to attend the law lectures of George Wythe, of William and Mary college, and those of Professor (afterward Bishop) Madison on natural philosophy.
In the summer of 1780 Marshall received a license to
practice law, but, on the invasion of Virginia by General Alexander Leslie in October, he joined the army again under Baron Steuben, and remained in the service until
Arnold, after his raid on James river, had retired to Portsmouth. This was in January, 1781. He then resigned his commission, and studied law He had spent nearly six years in arduous military service, exposed to the dangers, enduring the hardships, and partaking the anxieties of that trying period. The discipline of those six years could not have failed to strengthen the manliness of his character and greatly enlarge his knowledge of the chief men, or those who became such, from every part of the country, and of their social and political principles. Though it was a rough and severe school, it was instructive, and produced a maturity and self-dependence that could not have been acquired by a much longer experience under different circumstances.
As soon as the courts were re-opened young Marshall began practice, and quickly rose to high distinction at the bar. In the spring of 1782 he was elected to the house of burgesses, and in the autumn a member of the state executive council. On 3 January. 1783, he married Mary Willis Ambler, daughter of the state treasurer, with whom he lived for nearly fifty years, and about the same time he took up his permanent residence in Richmond. In the spring of 1784 he resigned his seat at the council board in order to devote himself more exclusively to his profession, but he was immediately returned to the legislature by Fauquier county, though he retained only a nominal residence there. In 1787 he was elected to represent Henrico, which includes the city of Richmond. He was a decided advocate of the new United States constitution, and in 1788 was elected to the state convention that was called to consider its ratification. His own constituents were opposed to its provisions, but chose him in spite of his refusal to pledge himself to vote against its adoption. In this body he spoke only on important questions, such as the direct power of taxation, the control of the militia, and the judicial power--the most important features of the proposed government, the absence of which in the Confederation was the principal cause of its failure. On these occasions he generally answered
Patrick Henry, the most powerful opponent of the constitution, and he spoke with such force of argument and breadth of views as greatly to affect the final result. which was a majority in favor of ratification.
The acceptance of the constitution by Virginia was entirely due to the arguments of Marshall and
James Madison in the convention which recorded eighty-nine votes for its adoption against seventy-nine contrary voices. When the constitution went into effect, Marshall acted with the party that desired to give it fair scope and to see it fully carried out. His great powers were frequently called into requisition in support of the Federal cause, and in
defense of the measures of Washington's administration.
His practice, in the mean time, became extended and lucrative. He was employed in nearly every important cause that came up in the state and United States courts in Virginia. In addition to these labors, he served in the legislature for the two terms that followed the ratification of the constitution, contemporary with the sittings of the first congress under it, when those important measures were adopted by which the government was organized and its system of finance was established, all of which were earnestly discussed in the house of burgesses. He also served in the legislatures of 1795 and 1796, when the controversies that arose upon Jay's treaty and the French revolution were exciting the country. At this post he was the constant and powerful advocate of Washington's administration and the measures of the government. The treaty was assailed as unconstitutionally interfering with the power of congress to regulate commerce; but Marshall, in a speech of remarkable power, demonstrated the utter fallacy of this argument, and it was finally abandoned by the opponents of the treaty, who carried a resolution simply declaring the treaty to be inexpedient.
In August, 1795, Washington offered him the place of attorney-general, which had been made vacant by the death of
William Bradford, but he felt obliged to decline it. In February, 1796, he attended the supreme court at Philadelphia to argue the great case of the British debts,
Ware vs. Hylton, and while he was there received unusual attention from
the leaders of the Federalist party in congress. He was now, at forty-one years
of age, undoubtedly at the head of the Virginia bar; and in the branches of
international and public law, which, from the character of his cases and his own
inclination, he had profoundly studied, he probably had no superior, if he had
an equal, in the country.
In the summer of 1796 Washington tendered him the
place of envoy to France to succeed James Monroe,
but he declined it, and General Charles C. Pinckney was appointed. As the French
Directory refused to receive Mr. Pinckney, and ordered him to leave the country,
no other representative was sent to France until John Adams became president. In
June, 1797, Mr. Adams appointed Messrs. Pinckney, Marshall, and Elbridge Gerry
as joint envoys. Marshall's appointment was received with great demonstrations
of satisfaction at Richmond, and on setting out for Philadelphia he was escorted
several miles out of the city by a body of light horse, and his departure was
signalized by the discharge of cannon. The new envoys were as unsuccessful in
establishing diplomatic relations with the French republic as General Pinckney
had been. They arrived at Paris in October, 1797, and communicated with
Talleyrand, the minister for foreign affairs, but were cajoled and trifled with.
Secret agents of the minister approached them with a demand for money--50,000
pounds sterling for private account, and a loan to the government. Repelling"
these shameful suggestions with indignation, the envoys sent Talleyrand an
elaborate paper, prepared by Marshall, which set forth with great precision and
force of argument the views and requirements of the United States, and their
earnest desire for maintaining friendly relations with France. But it availed
nothing. Pinckney and Marshall, who were Federalists, were ordered to leave the
territories of the republic, while Gerry, as a Republican, was allowed to
remain. The news of these events was received in this country with the deepest
indignation. "History will scarcely furnish the example of a nation, not
absolutely degraded, which has experienced from a foreign power such open
contumely and undisguised insult as were on this occasion suffered by the United
States. in the persons of their ministers," wrote Marshall afterward in his
" Life of Washington."
Marshall returned to the United States in June, 1798, and was everywhere received with demonstrations of the highest respect and approval. At a public dinner given to him in Philadelphia, one of the toasts was
"Millions for defence; not a cent for tribute," which sentiment was echoed and re-echoed throughout the country. Patrick Henry wrote to a friend:" Tell Marshall I love him because he felt and acted as a republican, as an American." In August Mr. Adams offered him a seat on the supreme bench, which had been made vacant by the death of Judge James Wilson, but he declined it, and his friend, Bushrod Washington, was appointed. In his letter to the secretary of state, declaring his intention to nominate Marshall, President Adams said:
"Of the three envoys the conduct of Marshall alone has been entirely satisfactory, and ought to be marked by the most decided approbation of the public. He has raised the American people in their own esteem, and if the influence of truth and justice, reason and argument, is not lost in Europe, he has raised the consideration of the United States in that quarter of the world."
As the elections approached, Mr. Marshall was strongly urged to become a candidate for congress, consented much against his inclination, was elected in April, 1799, and served a single session. One of the most determined assaults that was made against the administration at this session was in relation to the case of Jonathan Robbins, alias Thomas Nash, who had been arrested in Charleston at the instance of the British consul, on the charge of mutiny and murder on the British frigate "Hermione," and who, upon habeas corpus, was delivered up to the British authorities by Judge Thomas Bee, in pursuance of the requisition of the British minister upon the president, and of a letter from the secretary of state to Judge Bee advising and requesting the delivery. Resolutions censuring the president and Judge Bee were offered in the house; but Marshall, in a most elaborate and powerful speech, triumphantly refuted all the charges and assumptions of law on which the resolutions were based, and they were lost by a decided vote. This speech settled the principles that have since guided the government and the courts of the United States in extradition cases, and is still regarded as an authoritative exposition of international law on the subject of which it treats. The session lasted till 14 May, but on the 7th Marshall was nominated as secretary of war in place of James McHenry, who had resigned ; and before confirmation, oil the 12th, he was nominated and appointed secretary of state in place of Timothy Pickering, who had been removed.
He filled this office with ability and credit during the remainder of Adams's administration. His state papers are luminous and unanswerable, especially his instructions to Rufus King, minister to Great Britain. in relation to the right of search, and other difficulties with that country Chief-Justice Ellsworth having resigned his seat on the bench in November, 1800, the president, after offering the place to
John Jay, who declined it, conferred the appointment on Mr. Marshall. The tradition is, that after the president had had the matter under consideration for some time, Mr. Marshall (or General Marshall, as he was then called) happened one day to suggest a new name for the place, when Mr. Adams promptly said:
"General Marshall, you need not give yourself any further trouble about that matter. I have made up my mind about it." "I am happy to hear that you are relieved on the subject," said Marshall.
"May I ask whom you have fixed upon? .... Certainly," said the president ;
"I have concluded to nominate a person whom it may surprise you to hear mentioned. It is a Virginia lawyer, a plain man by the name of John Marshall."
He was nominated on 20 January, unanimously confirmed, and presided in the court at the February term, though he was still holding the office of secretary of state. He at once took, and always maintained, a commanding position in the court, not only as its nominal but as its real head. The most important opinions, especially those on constitutional law, were pronounced by him. The thirty volumes of reports, from 1st Cranch to 9th Peters, covering a period of thirty-five years, contain the monuments of his great judicial power and learning, which are referred to as the standard authority on constitutional questions. They have imparted life and vigor not only to the constitution, but to the national body politic. It is not too much to say that for this office no other man could have been selected who was equally fitted for the task he had before him. To specify and characterize the great opinions that he delivered would be to write a treatise on American constitutional law. They must themselves stand as the monuments and proper records of his judicial history. It is reported by one of his descendants that he often said that if he was worthy of remembrance his best biography would be found in his decisions in the supreme court. Their most striking characteristics are crystalline clearness of thought, irrefragable logic, and a wide and statesman-like view of all questions of public consequence.
In these respects he has had no superior in this or any other country. Some men seem to be constituted by nature to be masters of judicial analysis and insight. Such were Papinian, Sir Matthew Hale, and Lord Mansfield, each in his particular province. Such was Marshall in his. They seemed to handle judicial questions as the great Euler did mathematical ones, with giant ease. As an instance of the simplicity with which he sometimes treated great questions may be cited his reasoning on the power of the court to decide upon the constitutionality of acts of congress. It had been claimed before; but it was Marshall's iron logic that settled it beyond controversy.
" It is a proposition too plain to be contested," said he, in Marbury vs. Madison,
"that the constitution controls any legislative act repugnant to it; or that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable."
The incidents of Marshall's life, aside from his judicial work, after he went upon the bench, are few. In 1807 he presided, with Judge
Cyrus Griffin, at the great state trial of
Aaron Burr, who was charged with treason and misdemeanor. Few public trials have excited greater interest than this.
President Jefferson and his adherents desired
Burr's conviction, but Marshall preserved the most rigid impartiality and exact
justice throughout the trial, acquitting himself, as always, to the public
In 1829 he was elected a delegate to the convention for
revising the state constitution of Virginia, where he again met Madison and
Monroe, who were also members, but much enfeebled by age. The chief justice did
not speak often, but when he did speak, though he was seventy-four years of age,
his mind was as clear and his reasoning as solid as in younger days. His deepest
interest was excited in reference to the independence of the judiciary. He
remained six years after this on the bench of the supreme court. In the spring
of 1835 he was advised to go to Philadelphia for medical advice, and did so, but
without any beneficial result, and died in that city.
In private Chief-Justice Marshall was a man of unassuming piety and amiability of temper. He was tall, plain in dress, and somewhat awkward in appearance, but had a keen black eye, and overflowed with geniality and kind feeling. He was the object of the warmest love and veneration of all his children and grandchildren. Judge Marshall published, at the request of the first president's family, who placed their records and private papers at his disposal, a
"Life of Washington" (5 vols., Philadelphia, 1804-'7), of which the first volume was afterward issued separately as
"A History of the American Colonies" (1824). The whole was subsequently revised and condensed (2 vols., 1832), in this work he defended the policy of Washington's administration against the arguments and detractions of the Republicans. A selection from his decisions has been published, entitled
"The Writings of John Marshall, late Chief Justice of the United States, upon the Federal Constitution" (Boston, 1839), under the supervision of Justice Joseph Story.
His life has been written by George Van Santvoord, in his
"Sketches of the Chief Justices" (New York, 1854); and by Henry Flanders, in his
"Lives and Times of the Chief Justices" (2d series, Philadelphia, 1858). See also
"Eulogy on the Life and Character of Marshall," by Horace Binney (Philadelphia, 1835); "Discourse upon the Life, Character, and Services of John Marshall," in Joseph Story's " Miscellaneous Writings"
(Boston, 1852); "Chief-Justice Marshall and the Constitutional Law of his Time," an address by Edward J. Phelps (1879); and
"John Marshall," by Allan B. Magruder (Boston, 1885).--