Alfred Marshall

“ It is time to be old,
To take in sail. (Emerson.)
The last years of Marshall's life were clouded with sadness, almost despair. His health failed; his wife died; the Supreme Court was successfully defied; his greatest opinion was repudiated and denounced by a strong and popular President; his associates on the Bench were departing from some of his most cherished views; and the trend of public events convinced him that his labor to construct an enduring nation, to create institutions of orderly freedom, to introduce stability and system into democracy, had been in vain. ”

“ Marshall was as profound a statesman as he was a great jurist. He recognized with that great far-seeing insight that amounts almost to inspiration, that it would have been to sound the death-knell of the Republic if he, as the chief law interpreter from the judicial seat, should so interpret the Constitution as to tie the hands of the Government and prevent the people from doing the things necessary to make themselves a great and permanent Nation. ”

“ For the one and only time in his career on the Supreme Bench, Marshall had pronounced a "popular" opinion. The press acclaimed him as the deliverer of the Nation from thralldom to monopoly. His opinion, records the New York Evening Post, delivered amidst "the most unbroken silence" of a "courtroom ... crowded with people," was a wonderful exhibition of intellect—"one of the most powerful efforts of the human mind that has ever been displayed from the bench of any court. ”

“ Not more was John Marshall the chief of the accomplished and able men who sat with him on the Supreme Bench at Washington than, even in his advancing years, he was the leader of the convivial spirits who gathered to pitch quoits, drink julep and punch, tell stories, sing songs, make speeches, and play pranks under the trees of Richmond. ”

“ This is not to be wondered at, for, writing twenty years afterward, when Marshall as Chief Justice was at the height of his career, his sister-in-law testifies that his "total negligence of person ... often produced a blush on her [Marshall's wife's] cheek." [530] But he finally secured lodgings, was inoculated, and, made secure from the attacks of the dreaded scourge, back he fared to Virginia and Mary Ambler.
And Marshall made love as he made war, with all his might. A very hurricane of a lover he must have been ”

“ The essence of Marshall's doctrine is that, although the powers of the National Government are limited, the means by which they may be executed are unlimited. But, "as ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards, which were not begotten by the people." ”

“ It is not immoderate to say that no other judicial pronouncement in history was so wedded to the inventive genius of man and so interwoven with the economic and social evolution of a nation and a people. After almost a century, Marshall's Nationalist theory of commerce is more potent than ever; and nothing human is more certain than that it will gather new strength as far into the future as forecast can penetrate.
At the time of its delivery, nobody complained of Marshall's opinion except the agents of the steamboat monopoly, the theorists of Localism, and the slave autocracy. ”

“ He appears to us as a gigantic figure looming, indistinctly, out of the mists of the past, impressive yet lacking vitality, and seemingly without any of those qualities that make historic personages intelligible to a living world of living men. Yet no man in our history was more intensely human than John Marshall and few had careers so full of movement and color. ”

“ Within a few days after he had become the Federalist candidate, an anonymous writer, signing himself "Freeholder," published in the Richmond newspapers an open letter to Marshall asking him whether he was for the Constitution; whether the welfare of America depended on a foreign alliance; whether a closer connection with Great Britain was desirable; whether the Administration's [Pg 387] conduct toward France was wise; and, above all, whether Marshall was "an advocate of the alien and sedition bills or in the event of your election will you use your influence to obtain a repeal of these laws?" ”

“ An essential part of any successful action on the part of the United States is an understanding on the part of the people of America of the character of the problem and the remedies to be applied. Political passion and prejudice should have no part. With foresight, and a willingness on the part of our people to face up to the vast responsibility which history has clearly placed upon our country, the difficulties I have outlined can and will be overcome.
I am sorry that on each occasion I have said something publicly in regard to our international situation, I have been forced by the necessities of the case to enter into rather technical discussions. ”

“ There, declared Marshall, was the real check and control. "In this country, there is no exclusive personal stock of interest. The interest of the community is blended and inseparably connected with that of the individual. When he promotes his own, he promotes that of the community. When we consult the common good, we consult our own." ”

“ With this experience of what war meant, John Marshall could have returned to the safety of Oak Hill and have spent, at that pleasant fireside, the red years that were to follow, as indeed so many in the colonies who then and after merely prated of liberty, actually did. But it was not in the Marshall nature to support a cause with lip service only. Father and son chose the sterner part; and John Marshall was now about to be schooled for four years by grim instructors in the knowledge that strong and orderly government is necessary to effective liberty. ”

“ John Marshall lived well into the nineteenth century, and his great work was to interpret that Constitution to the country, to give it the meaning which it has for us to-day. Marshall was a Virginian, was just of age at the outbreak of the Revolution, and served in the American army for five years, enlisting as a private and rising to the rank of captain. At the close of the war, he studied law, gained a prominent place in the politics of his state, drew the attention of Washington by his unusual ability, and in 1800 was appointed by him secretary of state. ”

“ It is important to emphasize the fact that Marshall adhered in his opinions to the Constitution as written, not only because it is a fact which must be recognized if we are to understand the correct value of his work in the field of constitutional law, but also because there exists to-day a popular impression that by implication he stretched to the utmost the powers of the Federal government. ”

“ Marshall is described as a man of meekness and charity, a promoter of peace and healer of discords, whose practice agreed with his preaching. He gave medical treatment to the poor for nothing.
Marshall chiefly wrote epistles. Twenty-six are included in his 'Works,' published under the title of 'Sion's Travellers comforted,' London, 1704, with preface by Penn, and testimonies by his wife and other friends. It contains, besides his Journal, 'The Way of Life revealed, and the Way of Death discovered,' Bristol, 1674, reprinted three times, and translated into Welsh by J. Lewis, Carmarthen, 1773 ”

“ Yet, while American Nationalism was Marshall's one and only great conception, and the fostering of it the purpose of his life, he was wholly out of sympathy with the National movement that led to our second conflict with Great Britain, and against the continuance of it. He heartily shared the opinion of the Federalist leaders that the War of 1812 was unnecessary, unwise, and unrighteous. ”

“ Thus Marshall asserted his purely American attitude. It was a daring thing to do, considering the temper of the times and the place where he then was. Even in America, at that period, any one who was exclusively American and, therefore, neutral, as between the European belligerents, was denounced as being British at heart. Only by favoring France could abuse be avoided. And to assert Neutrality in the French Capital was, of course, even more dangerous than to take this American stand in the United States. ”

“ Ultra-conservative as Marshall was, strongly as he felt the great body of the people incapable of self-government, he was deeply concerned for the well-being of what he called "the mass of the people." The best that can be done for them, he says in a [Pg 472] letter to Charles F. Mercer, is to educate them. "In governments entirely popular" general education "is more indispensable ... than in an other." The labor problem troubles him sorely. When population becomes so great that "the surplus hands" must turn to other employment, a grave situation will arise. ”

“ Like all men of the first rank, Marshall met in a great way, and without attempt at compromise, a great issue that could not be compromised—an issue which, everywhere, at that moment, was challenging the existence of the Nation. ”

“ Marshall compares the governments of France and America. To one who, like himself, is so accustomed to real liberty that he "almost considers it as the indispensable companion of man, a view of [French] despotism," though "borrowing the garb usurping the name of freedom," teaches "the solid safety and real security" existing in America. The loss of these "would poison ... every other joy." Without them "freemen would turn with loathing and disgust from every other comfort of life." ”

“ If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future." [1459]
In this opinion the moral force of Marshall was displayed almost as much as in the case of the Schooner Exchange. [1460] He was friendly to the whole Indian race; he particularly detested Georgia's treatment of the Cherokees; he utterly rejected the State Rights theory on which the State had acted; and he could easily have decided in favor of the wronged and harried Indians, as the dissent of Thompson and Story proves. ”

“ We are now to ascend with Marshall the mountain peaks of his career. Within the decade that followed after the close of our second war with Great Britain, he performed nearly all of that vast and creative labor, the lasting results of which have given him that distinctive title, the Great Chief Justice. ”

“ The appointment of Story to the Supreme Bench was, like the other determining circumstances in Marshall's career, providential.
Few characters in American history are more attractive than the New England lawyer and publicist who, at the age of thirty-two, took his place at Marshall's side on the Supreme Bench. Hand [Pg 96] some, vivacious, impressionable, his mind was a storehouse of knowledge, accurately measured and systematically arranged. He read everything, forgot nothing. His mental appetite was voracious, and he had a very passion for research. ”

“ Every contemporary student of Marshall's method and equipment notes the meagerness of his learning in the law. "Everyone has heard of the gigantick abilities of John Marshall; as a most able and profound reasoner he deserves all the praise which has been lavished upon him," writes Francis Walker Gilmer, in his keen and brilliant contemporary analysis of Marshall. ”

“ At last Marshall had grave intimations that his life could not be prolonged. Quite suddenly his health declined, although his mind was as strong and clear as ever. "Chief Justice Marshall still possesses his intellectual powers in very high vigor," writes Story during the last session of the Supreme Court over which his friend and leader presided. "But his physical strength is manifestly on the decline; and it is now obvious, that after a year or two, he will resign, from the pressing infirmities of age.... What a gloom will spread over the nation when he is gone! ”

“ The whole world is in arms and no rights are respected but those that are maintained by force. (Marshall.)
Marshall is disposed to express great respect for the sovereign people and to quote their expressions as evidence of truth. (Theodore Sedgwick.)
"I have been much in Company with General Marshall since we arrived in this City. He possesses great powers and has much dexterity in the application of them. He is highly & deservedly respected by the friends of Government [Federalists] from the South. In short, we can do nothing without him. ”

“ It all came to this, he said, Union or Dissolution, thus again repeating the argument Washington had urged in his letter to Randolph. "Let that glorious pride which once defied the British thunder, reanimate you again," he cried dramatically. [1203] But his fervor, popularity, and influence were not enough.
Marshall, when he came to speak later in the debate, made the same mistake. No more striking illustration exists of how public men, in the hurry and pressure of large affairs, forget the most important events, even when they themselves were principal actors in them. ”

“ The Supreme Court reversed Marshall's judgment, holding that the authorization of an agent by a corporation can be established by presumptive evidence, [1311] an opinion that was plainly sound and which stated the law as it has continued to be ever since. But despite the unanimity of his brethren, the clear [Pg 483] and convincing opinion of Story, the disapproval of his own views by the bench, bar, and business men of the whole country, Marshall would not yield. "The Ch: Jus: I fear will die hard," wrote Webster, who was of counsel for the bank. ”

“ Here we find Thomas Marshall a member of the Virginia Convention, [210] when once more the radicals of the up country met and defeated the aristocratic conservatives of the older counties. The latter counseled prudence. They argued weightily that the colony was not prepared for war with the Royal Power across the sea. They urged patience and the working-out of the problem by processes of conciliation and moderate devices, as those made timid by their [Pg 66] own interests always do. [211] Selfish love of ease made them forget, for the moment, the lesson of Braddock's defeat. ”