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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
satisfaction.
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).
MARSHALL, Thomas, planter father of John Marshall, born in
Virginia about 1655; died in Westmoreland county, Virginia, in 1704.
His father, John, a captain of cavalry in the service of Charles I.,
emigrated to Virginia about 1650. He owned a large plantation in
Virginia, and was the head of the Marshall family of Virginia and
Kentucky.--His grandson, Thomas, born in Washington parish,
Westmoreland County, Virginia, 2 April, 1730: died in Mason county,
Kentucky, 22 June, 1802, was the son of "John of the Forest," so
called from the estate that he owned, was educated in Reverend
Archibald Campbell's school, and subsequently assisted Washington in
his surveying excursions for Lord Fairfax and others, for which he
received several thousand acres of land in West Virginia. He was a
lieutenant of Virginians in the French and Indian war, and
participated in the expedition of General Braddock against Fort
Duquesne, but, having been detailed as one of the garrison at Fort
Necessity, was not at the defeat. In 1753 he accepted the agency of
Lord Pairfax to superintend a portion of his estate in the "Northern
neck," and in 1754 married Mary Randolph, daughter of Reverend James
Keith, an Episcopal clergyman of Pauquier. In 1765 he removed to
Goose Creek, and in 1773 purchased "The Oaks" or" Oak Hill" in Leeds
parish in the northern part of Fauquier county. In 1767 he was high
sheriff of Fauquier county, and he was frequently a member of the
house of burgesses. He condemned and pledged resistance to the
encroachments of the crown, and was a member of the Virginia
convention that declared her independence. In 1775, on the summons
of Patrick Henry, he recruited a battalion and became major of a
regiment known as the "Culpepper minute-men." He afterward became
colonel of the 3d Virginia regiment. At the battle of Brandywine his
command was placed in a wood on the right, and, though attacked by
greatly superior numbers, maintained its position without losing an
inch of ground until its ammunition was nearly expended and more
than half its officers and .one third of the soldiers were killed or
wounded. The safety of the patriot army on this occasion was largely
due to the good conduct of Colonel Marshall and his command. The
house of burgesses voted him a sword. At Germantown his regiment
covered the retreat of the patriot army. He was with Washington at
Valley Forge. He was afterward ordered to the south, and was
surrendered by General Lincoln at Charleston in 1780. When paroled
he took advantage of the circumstance to make his first visit to
Kentucky on horseback over the mountains, and then located the lands
on which he subsequently lived in Wood-ford, having been exchanged,
he resumed his command and held it until the close of the war. In
1781 he was for a time in command at York. He was appointed
surveyor-general of the lands in Kentucky in 1783, in that year
established his office in Lexington, and removed his family to
Kentucky in 1785. In 1787 and 1788 he represented Fayette county in
the Virginia assembly. In the latter year he was also a delegate to
the convention in Danville to consider the separation of Kentucky
from Virginia. He was appointed by Washington collector of revenue
for Kentucky. He and all his family were Federalists.
