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JOHN MARSHALL

[1755-1835]

A. J. MONTAGUE

AT

T Germantown, near Midland, a station on the Southern Railway, in the County of Fauquier, Virginia, almost in sight of what is now the Nation's capital, on September 24, 1755, John Marshall was born. His father, Thomas Marshall, a schoolmate of Washington, whom he aided in his surveys for Fairfax; several times member of the House of Burgesses, and a colonel in the Continental Army, was a man of intellect and character. His mother was Mary Isham Keith, whose father was an Episcopal clergyman, and cousin-german to Field-marshal James Keith, a trusted lieutenant of the great Frederick. John was the first-born of fifteen children, and was especially noted for his obedience and his affectionate disposition.

His early education was limited. At twelve he had memorized much of Pope, was familiar with Dryden, Milton, and Shakespeare, and at fifteen was a ready reader of Virgil, Horace, and Livy. His father greatly aided him in mathematics and literature, while the swelling hills and the inspiring Blue Ridge of his home ennobled his ideals and aspirations.

He began the study of law at eighteen, soon to be interrupted by the Revolution; when under twenty he walked ten miles to the muster field, his brave dress consisting of "a plain blue hunting-shirt, and trousers of the same material fringed with white, and a round black hat with a buck-tail for a cockade." On this occasion, the captain not appearing, Lieutenant Marshall addressed the company, vividly stating the invasion of our liberties, and urging his comrades "to brighten up your firearms and learn to use them in the field." His first battle was Iron Hill, which was soon followed by promotion to captaincy, and by valiant participation in the battles. of Brandywine, Germantown, Monmouth, and Stony Point.

At Valley Forge his patient endurance and unfailing cheerfulness won for him extraordinary popularity, and his judicial genius thus early found him arbiter of personal differences amongst the soldiery and deputy judge-advocate. This office was the beginning of his lasting friendship with Washington and Hamilton.

In the autumn of 1779 Marshall's command was sent South, while he himself went to Williamsburg to await the action of the General

Assembly in raising new troops. He employed this time in studying law at William and Mary College, under Chancellor Wythe, and natural philosophy, under Bishop Madison. Here he became a member of the Alpha Chapter of the Phi Beta Kappa Society. Upon the failure to raise troops, he repaired on foot to headquarters, reaching Philadelphia so disheveled as to be refused admittance at the inn. He returned to Virginia on its invasion by Leslie, and resigned from the service after the second invasion of his State by Arnold.

After the surrender at Yorktown, Marshall began the practice of law in his native county, rising rapidly to the front of his profession, only to be interrupted by an unsought election to the General Assembly in 1782, and, in the autumn, to the office of Privy Council or Council of State. Not long after this he took a permanent residence in Richmond, where litigation was more attractive, and where the Supreme Court of Appeals was more stimulating to his talents. His professional leadership was soon acknowledged, the Duc de Liancourt writing of him as "the most esteemed and celebrated counsellor" at the Richmond Bar.

There was not then a volume of published reports in America; but Marshall was well read in the decisions of Westminster Hall, and possessed that indescribable genius for resolving the most complex questions into simple and axiomatic statements, expressed always with personal detachment. He was engaged in the most important litigation of the day, the British Debt case being a notable example, his argument therein creating a profound impression. Washington offered him the district-attorneyship in 1789, the attorney-generalship and the mission to France in 1796, each of which he declined; his determination to remain at the Bar then appeared unalterable.

As a soldier, Marshall fought for the union of the colonies into one great republic; and as a statesman this was his dominating ideal. He tells us that associated as he was in the Army "with brave men from different states who were risking life fighting for a common cause believed by them to be most precious, I was in the habit of considering America my country and Congress my government." This opinion found expression in the Legislature of 1784, when, though a non-resident, he was the second time elected from Fauquier; again, in 1787, as Representative of Henrico, and notably in the Convention of June, 1788, when called to ratify or reject the Constitution of the United States. This convention had among its members Henry, Mason, Pendleton, Madison, Randolph, Nicholas and Henry Lee; and Madison himself was not more influential than Marshall in securing the ratification of the Constitution. In a public meeting in Richmond, to endorse the Jay Treaty, he took issue with his old teacher, Wythe, and demonstrated the error of the popular

contention that, in giving Congress the power to regulate commerce, the President was thereby denied the right to negotiate a commercial treaty. This speech gave him a national reputation.

In 1795 he was again elected to the General Assembly; and in May, 1797, was one of the three special envoys sent by Adams to France. In his new field, this democratic American was easily the master of the commission, resisting the blandishments and bribes of Talleyrand, and overwhelming the Directory with two letters which. justly rank among the ablest of state papers. On his return, his services evoked the famous aphorism, "Millions for defence, but not one cent for tribute." Patrick Henry said: "Tell Marshall I love him because he has acted as a Republican and as an American"; and Adams declared: "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."

The next year the appointment of Justice of the Supreme Court of the United States was offered to him, but he declined it; for, in view of the expected war with France, he felt that he could better serve Washington in the Congress, assembling for the last time in Philadelphia, in December, 1799. His first duty was to announce to the House the death of Washington, and, despite his modesty, he soon found himself leading in the discussions of constitutional questions. His argument upon the surrender of Robins illumined the line separating executive from judicial power. Against his party and the wishes of the President, he asserted his independence by voting for the repeal of the Alien and Sedition Laws. But Mr. Adams was not thereby estranged, for soon after this he appointed Marshall Secretary of State, the duties of which office he discharged with rare distinction in the crisis of the war between France and Great Britain; indeed, his state documents upon the neutrality of America were distinct contributions to international jurisprudence.

He was appointed Chief Justice by President Adams on February 4, 1801, and continued for a while to perform the duties of that office as well as those of Secretary of State. His great career then began. Pinckney said he would have been the chief justice of any country in which he might have lived. Mr. Bryce declares that "no other man did half so much as Marshall, either to develop the Constitution by expounding it, or to secure the judiciary its rightful place in the Government as the living voice of the Constitution." This "living voice" has survived parties and wars. His work on the Supreme Bench may fall under four heads: (1) The famous case of Marbury v. Madison determines whether the court can declare void an act of Congress if contrary to the Constitution. Marshall's words are: "It

is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it, or that the legislature can alter the Constitution by any 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 nature illimitable." This decision startled the country. Jefferson termed it a "judicial veto." But this function of the court has long been held the greatest safeguard of constitutional liberty. (2) This "living voice" was never so potential as when developing into a progressive organism the Constitution under the doctrine of implied powers. Upon this subject he delivered his greatest opinion in McCulloch v. Maryland. "Let the end," said he, "be legitimate; let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." His famous dictum that "the power to tax involves the power to destroy" was made in this decision. He would be strict to find the power but liberal with the means to make it effective. (3) In Fletcher v. Peck and the Dartmouth College Case, he dealt with specific limitations upon the states, thereby imparting an expanding jurisdiction to the National Government. And (4) in Gibbons v. Ogden, and in Brown v. Maryland, he disclosed the potency and range of the power of Congress to regulate foreign and interstate commerce. His decisions are now practically a part of the Constitution, though it is more than likely he would have modified some of them could he have foreseen their application to times and conditions undreamed of by him.

The conduct of Judge Marshall in the trial of Aaron Burr is an interesting episode in his career, as well as in the career of the Nation. His serene impartiality and courage are best exemplified in his own language used in this trial. He said: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would drain it to the bottom. But if he has no choice in the case, if there is no alternative presented to him but a dereliction of duty, or the opprobrium

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of those who are denominated the world, he merits the contempt as well as the indignation of his country, who can hesitate which to embrace."

In 1829 he took his seat along with Madison and Monroe in the Virginia Constitutional Convention. There he gave an appreciation of the judiciary. He said: "I have always thought, from my earliest. youth until now, that the greatest scourge an angry heaven inflicted upon an ungrateful and sinning people was an ignorant, a corrupt, or a dependent judiciary."

Soon after becoming Chief Justice he undertook to write his "Life of Washington," which appeared in five volumes from 1802 to 1804. He had little time for so great a task. His work is full of historical material, but in literary arrangement and vigor of style it is not comparable to his opinions, nor does it possess the charm of his few published letters. Later he republished the work in three volumes, the first volume being a history of the Colonial period.

His moral character was strong and lofty, his bearing simple but dignified. He was an attendant upon the Episcopal Church, and a Mason. He was strongly opposed to slavery. He married Mary Willis Ambler, with whom he lived happily for more than fifty years. His tenderness and devotion to his wife and children were unsurpassed. He died July 6, 1835, four years after the death of his wife, by whose side he rests in Shockoe Hill Cemetery, Richmond, Virginia.

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