Thomas Marshall

“ A book was placed in the hands of John Marshall, at this time, that influenced his mind even more than his reading of Pope's poetry when a small boy. Blackstone's "Commentaries" was published in America in 1772 and one of the original subscribers was "Captain Thomas Marshall, Clerk of Dunmore County, Virginia." [175] The youthful backwoodsman read Blackstone with delight; for this legal classic is the poetry of law, just as Pope is logic in poetry. Also, Thomas Marshall saw to it that his son read Blackstone as carefully as circumstances permitted. ”

“ Thus all the male members of the Marshall family, old enough to bear arms, were officers in the War of the Revolution. This important fact demonstrates the careful military training given his sons by Thomas Marshall before 1775—a period when comparatively few believed that war was probable.
[393] This was the common lot; Washington told Congress that, of the thousands of his men at Valley Forge, "few men have more than one shirt, many only the moiety of one and some none at all." (Washington to President of Congress, Dec. 23, 1777; Writings: Ford, vi, 260.) ”

“ Thomas Marshall was the son of a very small planter in Westmoreland County, Virginia. October 23, 1727, three years before Thomas was born, his father, John Marshall "of the forest," acquired by deed, from William Marshall of King and Queen County, two hundred acres of poor, low, marshy land located on Appomattox Creek. ”

“ Horse-racing, runaway slaves, politics, and other picturesque matters were the subjects discussed. [619] Outsiders stood in no awe of these lawgivers of the people and voiced their contempt, ridicule, or dislike quite as freely as their approval or admiration. [620]
Into this assembly came John Marshall in the fall of 1782. Undoubtedly his father had much to do with his son's election as one of Fauquier County's representatives. His predominant influence, which had made Thomas Marshall Burgess, Sheriff, and Vestryman before the Revolution, had been increased by his admirable war record ”

“ Washington tells us that in his surveying trips, he frequently slept on the floor in the room of a settler's cabin where the fireplace was and where husband, wife, children, and visitors stretched themselves for nightly rest; and he remarks that the person was lucky who got the spot nearest the fireplace. [168]
[Pg 54] At the end of a year the embryo Scottish clergyman's character, ability, and services having met the approval of Thomas Marshall and his fellow vestrymen, Thompson returned to England for orders. [169] So ended John Marshall's first instruction from a trained teacher. ”

“ In the years between Patrick Henry's two epochal appeals in 1765 and 1775, all Virginia, but particularly the back country, had been getting ready to make answer in terms of rifle and lead. "No man should scruple, or hesitate a moment, to use arms," wrote Washington in 1769. [218] Thomas Marshall's [Pg 70] minister, Mr. Thompson, preached militant preparation; Parliament had deprived the colonists of "their just and legal rights" by acts which were "destructive of their liberties," thundered the parson ”

“ See infra, chap. II. When Leeds Parish was organized, we find Thomas Marshall its leading vestryman. He was always a stanch churchman.
[64] Jones, 35; Burnaby,58. But see Maxwell in William and Mary College Quarterly, xix, 73-103; and see Bruce: Econ., i, 425, 427, 585, 587.
[65] "Though tobacco exhausts the land to a prodigious degree, the proprietors take no pains to restore its vigor; they take what the soil will give and abandon it when it gives no longer. They like better to clear new lands than to regenerate the old." (De Warville, 439; and see Fithian, 140.) ”

“ Beaten? nay, victors: the realms they have won
Are the hearts of men who forever shall hear
The throb of their far-off drums.
[Pg 339] "TOM" MARSHALL [29]
[From The Autobiography of Nathaniel Southgate Shaler (Boston, 1909) ]
I have referred above to Thomas F. Marshall, a man of singular attractiveness and talents with whom I had a curious relation. I first met him when I was about fourteen years of age, when he, for some time a congressman, had through drunkenness fallen into a curious half-abandoned mode of life. He was then an oldish fellow, but retained much of his youthful splendor. ”

“ And notable men were there for him to observe; vast forces moving for him to study. Thomas Jefferson had again become a member of the House after his vindication from threatened impeachment. Patrick Henry was a member, too, and William Cabell, Richard Henry Lee, Benjamin Harrison, and other men whose names have become historic. During Marshall's later years in the Legislature, James Madison, George Mason, William Grayson, Edmund Randolph, George Nicholas, and others of like stature became Marshall's colleagues. ”

“ Marshall died on 21 Nov. 1903 at his residence, 13 Belsize Avenue, N.W., and was buried in Hampstead churchyard. He married on 7 Oct. 1864 Florence Ashton, eldest daughter of Canon Thomas, vicar of Allhallows Barking, and granddaughter of Archbishop Sumner. Three daughters survived him. Mrs. ”

“ General Thompson, who commanded the army after the illness of General Thomas, understanding the party at the Three Rivers to consist of about eight hundred men, partly Canadians, had detached Colonel St. Clair with between six and seven hundred men, to attack it, if there should be any probability of doing so with advantage. Colonel St. Clair advanced to Nicolet, where, believing himself not strong enough for the service on which he had been ordered, he waited for further reinforcements, or additional instructions. At this time General Sullivan arrived ”

“ This practice of Judge Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and very censurable. ”

“ The superiority of la Didon’s sailing, added to the adroit manoeuvres of her commander, convinced Captain Baker of the skill and gallantry he should have to contend with, which was fully evinced by the stubborn defence of the ship, until she became a perfect wreck. The loss sustained by the Phoenix in this conflict was 12 killed and 28 wounded. ”

“ 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. ”

“ Conspicuous in the ranks of Federalists, and unsurpassed in debate, was a tall and gaunt young man, with beaming countenance, eyes of piercing brilliancy, and an indescribable kingliness of bearing, who was by and by to become chief justice of the United States, and by his masterly and far-reaching decisions to win a place side by side with Madison and Hamilton among the founders of our national government. John Marshall, second to none among all the illustrious jurists of the English race, was then, at the age of thirty-three, the foremost lawyer in Virginia. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ It was thus that Joseph Story, when a very young lawyer, first fell under Marshall's spell. "I love his laugh," he wrote; "it is too hearty for an intriguer,—and his good temper and unwearied patience are equally agreeable on the bench and in the study." [227] And Marshall wore well. The longer and more intimately men associated with him, the greater their fondness for him. ”

“ Early in their relationship distrust and antagonism developed. Marshall’s biographer Beveridge traces it to the harsh days of the American Revolution.
46 The Marshalls, father and son, were warriors who volunteered their services on the outbreak of hostilities. They fought at Great Bridge, the first engagement of the Revolution on Virginia soil. They later were present at the battles of Brandywine and Germantown. John was at Valley Forge and by then promoted to captain. ”

“ 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. ”

“ In Richmond, then, his characteristics were best known; and so striking were they that time has but little dimmed the memory of them.
Marshall, the Chief Justice, continued to neglect his dress and personal appearance as much as he did when, as a lawyer, his shabby attire so often "brought a blush" to the cheeks of his wife, [162] and his manners were as "lax and lounging" as when Jefferson called them proofs of a "profound hypocrisy." [163] Although no man in America was less democratic in his ideas of government, none was more democratic in his contact with other people. ”

“ 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. ”

“ The conclusion of his early manhood—reluctantly avowed after Washington, following the Revolution, had bitterly expressed the same opinion, [1326] that the people, left to themselves, are not capable of self-government—had now become a profound moral belief. It should again be stated that most of Marshall's views, formed as a young lawyer during the riotous years between the achievement of Independence and the adoption of the Constitution, had hardened, as life advanced, into something [Pg 489] like religious convictions. ”

“ 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! ”

“ 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?" ”