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2: Marshall's Early Years

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John Marshall was born on September 24, 1755, in Fauquier County, Virginia. Though like Jefferson he was descended on his mother's side from the Randolphs of Turkey Island, colonial grandees who were also progenitors of John Randolph, Edmund Randolph, and Robert E. Lee, his father, Thomas Marshall, was "a planter of narrow fortune" and modest lineage and a pioneer. Fauquier was then on the frontier, and a few years after John was born the family moved still farther westward to a place called "The Hollow," a small depression on the eastern slope of the Blue Ridge. The external furnishings of the boy's life were extremely primitive, a fact which Marshall used later to recall by relating that his mother and sisters used thorns for buttons and that hot mush flavored with balm leaf was regarded as a very special dish. Neighbors of course, were few and far between, but society was not lacking for all that. As the first of fifteen children, all of whom reached maturity, John found ample opportunity to cultivate that affectionate helpfulness and gayety of spirit which in after years even enemies accounted one of his most notable traits.

Among the various influences which, during the plastic years of boyhood and youth, went to shape the outlook of the future Chief Justice high rank must be accorded his pioneer life. It is not merely that the spirit of the frontier, with its independence of precedent and its audacity of initiative, breathes through his great constitutional decisions, but also that in being of the frontier Marshall escaped being something else. Had he been born in lowland Virginia, he would have imbibed the intense localism and individualism of the great plantation, and with his turn of mind might well have filled the role of Calhoun instead of that very different role he actually did fill. There was, indeed, one great planter with whom young Marshall was thrown into occasional contact, and that was his father's patron and patron saint, Washington. The appeal made to the lad's imagination by the great Virginian, was deep and abiding. And it goes without saying that the horizons suggested by the fame of Fort Venango and Fort Duquesne were not those of seaboard Virginia but of America.

Many are the great men who have owed their debt to a mother's loving helpfulness and alert understanding. Marshall, on the other hand, was his father's child. "My father," he was wont to declare in after years, "was a far abler man than any of his sons. To him I owe the solid foundations of all my success in life." What were these solid foundations? One was a superb physical constitution; another was a taste for intellectual delights; and to the upbuilding of both these in his son, Thomas Marshall devoted himself with enthusiasm and masculine good sense, aided on the one hand by a very select library consisting of Shakespeare, Milton, Dryden, and Pope, and on the other by the ever fresh invitation of the mountainside to healthgiving sports.

Pope was the lad's especial textbook, and we are told that he had transcribed the whole of the "Essay on Man" by the time he was twelve and some of the "Moral Essays" as well, besides having "committed to memory many of the most interesting passages of that distinguished poet." The result is to be partially discerned many years later in certain tricks of Marshall's style; but indeed the influence of the great moralist must have penetrated far deeper. The "Essay on Man" filled, we may surmise, much the same place in the education of the first generation of American judges that Herbert Spencer's "Social Statics" filled in that of the judges of a later day. The "Essay on Man" pictures the universe as a species of constitutional monarchy governed "not by partial but by general laws"; in "man's imperial race" this beneficent sway expresses itself in two principles," self-love to urge, and reason to restrain"; instructed by reason, self-love lies at the basis of all human institutions, the state, government, laws, and has "found the private in the public good"; so, on the whole, justice is the inevitable law of life. "Whatever is, is right." It is interesting to suppose that while Marshall was committing to memory the complacent lines of the "Essay on Man," his cousin Jefferson may have been deep in the "Essay on the Origin of Inequality."

At the age of fourteen Marshall was placed for a few months under the tuition of a clergyman named Campbell, who taught him the rudiments of Latin and introduced him to Livy, Cicero, and Horace. A little later the great debate over American rights burst forth and became with Marshall, as with so many promising lads of the time, the decisive factor in determining his intellectual bent, and he now began reading Blackstone. The great British orators, however, whose eloquence had so much to do, for instance, with shaping Webster's genius, came too late to influence him greatly.

The part which the War of Independence had in shaping the ideas and the destiny of John Marshall was most important. As the news of Lexington and Bunker Hill passed the Potomac, he was among the first to spring to arms. His services at the siege of Norfolk, the battles of Brandywine, Germantown, and Monmouth, and his share in the rigors of Valley Forge and in the capture of Stony Point, made him an American before he had ever had time to become a Virginian. As he himself wrote long afterwards: "I had grown up at a time when the love of the Union and the resistance to Great Britain were the inseparable inmates of the same bosom; ...when the maxim 'United we stand, divided we fall' was the maxim of every orthodox American. And I had imbibed these sentiments so thoroughly that they constituted a part of my being. I carried them with me into the army, where I found myself associated with brave men from different States, who were risking life and everything valuable in a common cause believed by all to be most precious, and where I was confirmed in the habit of considering America as my country and Congress as my government."

Love of country, however, was not the only quality which soldiering developed in Marshall. The cheerfulness and courage which illuminated his patriotism brought him popularity among men. Though but a lieutenant, he was presently made a deputy judge advocate. In this position he displayed notable talent in adjusting differences between officers and men and also became acquainted with Washington's brilliant young secretary, Alexander Hamilton.

While still in active service in 1780, Marshall attended a course of law lectures given by George Wythe at William and Mary College. He owed this opportunity to Jefferson, who was then Governor of the State and who had obtained the abolition of the chair of divinity at the college and the introduction of a course in law and another in medicine. Whether the future Chief Justice was prepared to take full advantage of the opportunity thus offered is, however, a question. He had just fallen heels over head in love with Mary Ambler, whom three years later he married, and his notebook seems to show us that his thoughts were quite as much upon his sweetheart as upon the lecturer's wisdom.

None the less, as soon as the Courts of Virginia reopened, upon the capitulation of Cornwallis, Marshall hung out his shingle at Richmond and began the practice of his profession. The new capital was still hardly more than an outpost on the frontier, and conditions of living were rude in the extreme. "The Capitol itself," we are told, "was an ugly structure—'a mere wooden barn'—on an unlovely site at the foot of a hill. The private dwellings scattered about were poor, mean, little wooden houses." "Main Street was still unpaved, deep with dust when dry and so muddy during a rainy season that wagons sank up to the axles." It ended in gullies and swamps. Trade, which was still in the hands of the British merchants, involved for the most part transactions in skins, furs, ginseng, snakeroot, and "dried rattlesnakes—used to make a viper broth for consumptive patients." "There was but one church building and attendance was scanty and infrequent." Not so, however, of Farmicola's tavern, whither card playing, drinking, and ribaldry drew crowds, especially when the legislature was in session.1

But there was one institution of which Richmond could boast, even in comparison with New York, Boston, or Philadelphia, and that was its Bar. Randolph, Wickham, Campbell, Call, Pendleton, Wythe—these are names whose fame still survives wherever the history of the American Bar is cherished; and it was with their living bearers that young Marshall now entered into competition. The result is somewhat astonishing at first consideration, for even by the standards of his own day, when digests, indices, and the other numerous aids which now ease the path of the young attorney were generally lacking, his preparation had been slight. Several circumstances, however, came to his rescue. So soon after the Revolution British precedents were naturally rather out of favor, while on the other hand many of the questions which found their way into the courts were those peculiar to a new country and so were without applicable precedents for their solution. What was chiefly demanded of an attorney in this situation was a capacity for attention, the ability to analyze an opponent's argument, and a discerning eye for fundamental issues. Competent observers soon made the discovery that young Marshall possessed all these faculties to a marked degree and, what was just as important, his modesty made recognition by his elders easy and gracious.

>From 1782 until the adoption of the Constitution,Marshall was almost continuously a member of the Virginia Legislature. He thus became a witness of that course of policy which throughout this period daily rendered the state governments more and more "the hope of their enemies, the despair of their friends." The termination of hostilities against England had relaxed the already feeble bonds connecting the States. Congress had powers which were only recommendatory, and its recommendations were ignored by the local legislatures. The army, unpaid and frequently in actual distress, was so rapidly losing its morale that it might easily become a prey to demagogues. The treaties of the new nation were flouted by every State in the Union. Tariff wars and conflicting land grants embittered the relations of sister States. The foreign trade of the country, it was asserted, "was regulated, taxed, monopolized, and crippled at the pleasure of the maritime powers of Europe." Burdened with debts which were the legacy of an era of speculation, a considerable part of the population, especially of the farmer class, was demanding measures of relief which threatened the security of contracts. "Laws suspending the collection of debts, insolvent laws, instalment laws, tender laws, and other expedients of a like nature, were familiarly adopted or openly and boldly vindicated.2

>From the outset Marshall ranged himself on the side of that party in the Virginia Legislature which, under the leadership of Madison, demanded with growing insistence a general and radical constitutional reform designed at once to strengthen the national power and to curtail state legislative power. His attitude was determined not only by his sympathy for the sufferings of his former comrades in arms and by his veneration for his father and for Washington, who were of the same party, but also by his military experience, which had rendered the pretensions of state sovereignty ridiculous in his eyes. Local discontent came to a head in the autumn of 1786 with the outbreak of Shays's Rebellion in western Massachusetts. Marshall, along with the great body of public men of the day, conceived for the movement the gravest alarm, and the more so since he considered it as the natural culmination of prevailing tendencies. In a letter to James Wilkinson early in 1787, he wrote: "These violent...dissensions in a State I had thought inferior in wisdom and virtue to no one in our Union, added to the strong tendency which the politics of many eminent characters among ourselves have to promote private and public dishonesty, cast a deep shade over that bright prospect which the Revolution in America and the establishment of our free governments had opened to the votaries of liberty throughout the globe. I fear, and there is no opinion more degrading to the dignity of man, that those have truth on their side who say that man is incapable of governing himself."

Marshall accordingly championed the adoption of the Constitution of 1787 quite as much because of its provisions for diminishing the legislative powers of the States in the interest of private rights as because of its provisions for augmenting the powers of the General Government. His attitude is revealed, for instance, in the opening words of his first speech on the floor of the Virginia Convention, to which he had been chosen a member from Richmond : "Mr. Chairman, I conceive that the object of the discussion now before us is whether democracy or despotism be most eligible.... The supporters of the Constitution claim the title of being firm friends of liberty and the rights of man ....We prefer this system because we think it a well-regulated democracy.... What are the favorite maxims of democracy? A strict observance of justice and public faith....Would to Heaven that these principles had been observed under the present government. Had this been the case the friends of liberty would not be willing now to part with it." The point of view which Marshall here assumed was obviously the same as that from which Madison, Hamilton, Wilson, and others on the floor of the Federal Convention had freely predicted that republican liberty must disappear from the earth unless the abuses of it practiced in many of the States could be eliminated.

Marshall's services in behalf of the Constitution in the closely fought battle for ratification which took place in the Virginia Convention are only partially disclosed in the pages of Elliot's "Debates." He was already coming to be regarded as one excellent in council as well as in formal discussion, and his democratic manners and personal popularity with all classes were a pronounced asset for any cause he chose to espouse. Marshall's part on the floor of the Convention was, of course, much less conspicuous than that of either Madison or Randolph, but in the second rank of the Constitution's defenders, including men like Corbin, Nicholas, and Pendleton, he stood foremost. His remarks were naturally shaped first of all to meet the immediate necessities of the occasion, but now and then they foreshadow views of a more enduring value. For example, he met a favorite contention of the opposition by saying that arguments based on the assumption that necessary powers would be abused were arguments against government in general and "a recommendation of anarchy." To Henry's despairing cry that the proposed system lacked checks, he replied: "What has become of his enthusiastic eulogium of the American spirit? We should find a check and control, when oppressed, from that source. 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 we consult the common good, we consult our own." And when Henry argued that a vigorous union was unnecessary because "we are separated by the sea from the powers of Europe," Marshall replied: "Sir, the sea makes them neighbors of us."

It is worthy of note that Marshall gave his greatest attention to the judiciary article as it appeared in the proposed Constitution. He pointed out that the principle of judicial independence was here better safeguarded than in the Constitution of Virginia. He stated in one breath the principle of judicial review and the doctrine of enumerated powers. If, said he, Congress "make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard; they would not consider such a law as coming within their jurisdiction. They would declare it void."3 On the other hand, Marshall scoffed at the idea that the citizen of a State might bring an original action against another State in the Supreme Court. His dissections of Mason's and Henry's arguments frequently exhibit controversial skill of a high order. From Henry, indeed, Marshall drew a notable tribute to his talent, which was at the same time proof of his ability to keep friends with his enemies.

On the day the great Judiciary Act became law, Marshall attained his thirty-fourth year. His stride toward professional and political prominence was now rapid. At the same time his private interests were becoming more closely interwoven with his political principles and personal affiliations, and his talents were maturing. Hitherto his outlook upon life had been derived largely from older men, but his own individuality now began to assert itself; his groove in life was taking final shape.

The best description of Marshall shows him in the prime of his manhood a few months after his accession to the Supreme Bench. It appears in William Wirt's celebrated "Letters of the British Spy":

"The [Chief Justice] of the United States is, in his person, tall, meager, emaciated; his muscles relaxed, and his joints so loosely connected, as not only to disqualify him, apparently for any vigorous exertion of body, but to destroy everything like elegance and harmony in his air and movements. Indeed, in his whole appearance, and demeanour; dress, attitudes, gesture; sitting, standing or walking; he is as far removed from the idolized graces of Lord Chesterfield, as any other gentleman on earth. To continue the portrait: his head and face are small in proportion to his height; his complexion swarthy; the muscles of his face, being relaxed, give him the appearance of a man of fifty years of age, nor can he be much younger; his countenance has a faithful expression of great good humour and hilarity; while his black eyes that unerring index—possess an irradiating spirit, which proclaims the imperial powers of the mind that sits enthroned within."

The "British Spy" then describes Marshall's personality as an orator at the time when he was still practicing at the Virginia bar:

"His voice [the description continues] is dry and hard; his attitude, in his most effective orations, was often extremely awkward, as it was not unusual for him to stand with his left foot in advance, while all his gestures proceeded from his right arm, and consisted merely in a vehement, perpendicular swing of it from about the elevation of his head to the bar, behind which he was accustomed to stand.... [Nevertheless] if eloquence may be said to consist in the power of seizing the attention with irresistible force, and never permitting it to elude the grasp until the hearer has received the conviction which the speaker intends, [then] this extraordinary man, without the aid of fancy, without the advantages of person, voice, attitude, gesture, or any of the ornaments of an orator, deserves to be considered as one of the most eloquent men in the world.... He possesses one original, and, almost, supernatural faculty; the faculty of developing a subject by a single glance of his mind, and detecting at once, the very point on which every controversy depends. No matter what the question; though ten times more knotty than the gnarled oak, the lightning of heaven is not more rapid nor more resistless, than his astonishing penetration. Nor does the exercise of it seem to cost him an effort. On the contrary, it is as easy as vision. I am persuaded that his eyes do not fly over a landscape and take in its various objects with more promptitude and facility, than his mind embraces and analyzes the most complex subject.

"Possessing while at the bar this intellectual elevation, which enables him to look down and comprehend the whole ground at once, he determined immediately and without difficulty, on which side the question might be most advantageously approached and assailed. In a bad cause his art consisted in laying his premises so remotely from the point directly in debate, or else in terms so general and so spacious, that the hearer, seeing no consequence which could be drawn from them, was just as willing to admit them as not; but his premises once admitted, the demonstration, however distant, followed as certainly, as cogently, as inevitably, as any demonstration in Euclid.

"All his eloquence consists in the apparently deep self-conviction, and emphatic earnestness of his manner, the correspondent simplicity and energy of his style; the close and logical connexion of his thoughts; and the easy gradations by which he opens his lights on the attentive minds of his hearers.

"The audience are never permitted to pause for a moment. There is no stopping to weave garlands of flowers, to hang in festoons, around a favorite argument. On the contrary, every sentence is progressive; every idea sheds new light on the subject; the listener is kept perpetually in that sweetly pleasurable vibration, with which the mind of man always receives new truths; the dawn advances in easy but unremitting pace; the subject opens gradually on the view; until, rising in high relief, in all its native colors and proportions, the argument is consummated by the conviction of the delighted hearer."

What appeared to Marshall's friends as most likely in his early middle years to stand in the way of his advancement was his addiction to ease and to a somewhat excessive conviviality. But it is worth noting that the charge of conviviality was never repeated after he was appointed Chief Justice; and as to his unstudious habits, therein perhaps lay one of the causes contributing to his achievement. Both as attorney and as judge, he preferred the quest of broad, underlying principles, and, with plenty of time for recuperation from each exertion, he was able to bring to each successive task undiminished vitality and unclouded attention. What the author of the "Leviathan" remarks of himself may well be repeated of Marshall—that he made more use of his brains than of his bookshelves and that, if he had read as much as most men, he would have been as ignorant as they.

That Marshall was one of the leading members of his profession in Virginia, the most recent biographical researches unmistakably prove. "From 1790 until his election to Congress nine years later," Albert J. Beveridge4 writes, "Marshall argued 113 cases decided by the court of appeals of Virginia.... He appeared during this time in practically every important cause heard and determined by the supreme tribunal of the State." Practically all this litigation concerned property rights, and much of it was exceedingly intricate. Marshall's biographer also points out the interesting fact that "whenever there was more than one attorney for the client who retained Marshall, the latter almost invariably was retained to make the closing argument." He was thus able to make good any lack of knowledge of the technical issues involved as well as to bring his great debating powers to bear with the best advantage. 4The Life of John Marshall, vol. II, p. 177.

Meanwhile Marshall was also rising into political prominence. >From the first a supporter of Washington's Administration, he was gradually thrust into the position of Federalist leader in Virginia. In 1794 he declined the post of Attorney-General, which Washington had offered him. In the following year he became involved in the acrimonious struggle over the Jay Treaty with Great Britain, and both in the Legislature and before meetings of citizens defended the treaty so aggressively that its opponents were finally forced to abandon their contention that it was unconstitutional and to content themselves with a simple denial that it was expedient. Early in 1796 Marshall made his first appearance before the Supreme Court, in the case of Ware vs. Hylton. The fame of his defense of "the British Treaty" during the previous year had preceded him, and his reception by the Federalist leaders from New York and New England was notably cordial. His argument before the Court, too, though it did not in the end prevail, added greatly to his reputation. "His head," said Rufus King, who heard the argument, "is one of the best organized of any one that I have known."

Either in 1793 or early in the following year, Marshall participated in a business transaction which, though it did not impart to his political and constitutional views their original bent, yet must have operated more or less to confirm his opinions. A syndicate composed of Marshall, one of his brothers, and two other gentlemen, purchased from the British heirs what remained of the great Fairfax estate in the Northern Neck, a tract "embracing over 160,000 acres of the best land in Virginia." By an Act passed during the Revolution, Virginia had decreed the confiscation of all lands held by British subjects; and though the State had never prosecuted the forfeiture of this particular estate, she was always threatening to do so. Marshall's investment thus came to occupy for many years a precarious legal footing which, it may be surmised, did not a little to keep alert his natural sympathy for all victims of legislative oppression. Moreover the business relation which he formed with Robert Morris in financing the investment brought him into personal contact for the first time with the interests behind Hamilton's financial program, the constitutionality of which he had already defended on the hustings.

It was due also to this business venture that Marshall was at last persuaded to break through his rule of declining office and to accept appointment in 1797, together with Pinckney and Gerry, on the famous "X.Y.Z." mission to France. From this single year's employment he obtained nearly $20,000, which, says his biographer, "over and above his expenses," was "three times his annual earnings at the bar"; and the money came just in the nick of time to save the Fairfax investment, for Morris was now bankrupt and in jail. But not less important as a result of his services was the enhanced reputation which Marshall's correspondence with Talleyrand brought him. His return to Philadelphia was a popular triumph, and even Jefferson, temporarily discomfited by the "X.Y.Z." disclosures, found it discreet to go through the form of paying him court—whereby hangs a tale. Jefferson called at Marshall's tavern. Marshall was out. Jefferson thereupon left a card deploring how "un/lucky" he had been. Commenting years afterwards upon the occurrence, Marshall remarked that this was one time at least when Jefferson came near telling the truth.

Through the warm insistence of Washington, Marshall was finally persuaded in the spring of 1799 to stand as Federalist candidate for Congress in the Richmond district. The expression of his views at this time is significant. A correspondent of an Alexandria newspaper signing himself "Freeholder" put to him a number of questions intended to call forth Marshall's opinions on the issues of the day. In answering a query as to whether he favored an alliance with Great Britain, the candidate declared that the whole of his "politics respecting foreign nations" was "reducible to this single position.... Commercial intercourse with all, but political ties with none." But a more pressing issue on which the public wished information was that furnished by the Alien and Sedition laws, which Marshall had originally criticized on grounds both of expediency and of constitutionality. Now, however, he defended these measures on constitutional grounds, taking the latitudinarian position that "powers necessary for the attainment of all objects which are general in their nature, which interest all America, ...would be naturally vested in the Government of the whole," but he declared himself strongly opposed to their renewal. At the same time he denounced the Virginia Resolutions as calculated "to sap the foundations of our Union."

The election was held late in April, under conditions which must have added greatly to popular interest. Following the custom in Virginia, the voter, instead of casting a ballot, merely declared his preference in the presence of the candidates, the election officials, and the assembled multitude. In the intensity of the struggle no voter, halt, lame, or blind, was overlooked; and a barrel of whisky near at hand lent further zest to the occasion. Time and again the vote in the district was a tie, and as a result frequent personal encounters took place between aroused partisans. Marshall's election by a narrow majority in a borough which was strongly pro-Jeffersonian was due, indeed, not to his principles but to his personal popularity and to the support which he received from Patrick Henry, the former Governor of the State.

The most notable event of his brief stay in Congress was his successful defense of President Adams's action in handing over to the British authorities, in conformity with the twenty-seventh article of the Jay treaty, Jonathan Robins, who was alleged to be a fugitive from justice. Adams's critics charged him with having usurped a judicial function. "The President," said Marshall in reply, "is sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him. He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty where he, and he alone, possesses the means of executing it." This is one of the few speeches ever uttered on the floor of Congress which demonstrably made votes. Gallatin, who had been set to answer Marshall, threw up his brief; and the resolutions against the President were defeated by a House hostile to him.

Marshall's course in Congress was characterized throughout by independence of character, moderation of views, and level good sense, of which his various congressional activities afford abundant evidence. Though he had himself been one of the "X.Y.Z." mission, Marshall now warmly supported Adams's policy of renewing diplomatic relations with France. He took his political life in his hands to register a vote against the Sedition Act, a proposal to repeal which was brought before the House. He foiled a scheme which his party associates had devised, in view of the approaching presidential election, to transfer to a congressional committee the final authority in canvassing the electoral vote—a plan all too likely to precipitate civil war. His Federalist brethren of the extreme Hamiltonian type quite resented the frequency with which he was wont to kick over the party traces. "He is disposed," wrote Sedgwick, the Speaker, "to express great respect for the sovereign people and to quote their opinions as an evidence of truth," which "is of all things the most destructive of personal independence and of that weight of character which a great man ought to possess."5

Marshall had now come to be practically indispensable to the isolated President, at whose most earnest insistence he entered the Cabinet as Secretary of State, though he had previously declined to become Secretary of War. The presidential campaign was the engrossing interest of the year, and as it spread its "havoc of virulence" throughout the country, Federalists of both factions seemed to turn to Marshall in the hope that, by some miracle of conciliation, he could save the day. The hope proved groundless, however, and all that was ultimately left the party which had founded the Government was to choose a President from the rival leaders of the opposition. Of these Marshall preferred Burr, because, as he explained, he knew Jefferson's principles better. Besides having foreign prejudices, Mr. Jefferson, he continued, "appears to me to be a man who will embody himself with the House of Representatives, and by weakening the office of President, he will increase his personal power." Better political prophecy has, indeed, rarely been penned. Deferring nevertheless to Hamilton's insistence—and, as events were to prove, to his superior wisdom—Marshall kept aloof from the fight in the House, and his implacable foe was elected.

Marshall was already one of the eminent men of the country when Adams, without consulting him, nominated him for Chief Justice. He stood at the head of the Virginia bar; he was the most generally trusted leader of his party; he already had a national reputation as an interpreter of the Constitution. Yet his appointment as Chief Justice aroused criticism even among his party friends. Their doubt did not touch his intellectual attainments, but in their opinion his political moderation, his essential democracy, his personal amiability, all counted against him. "He is," wrote Sedgwick, "a man of very affectionate disposition, of great simplicity of manners, and honest and honorable in all his conduct. He is attached to pleasures, with convivial habits strongly fixed. He is indolent therefore. He has a strong attachment to popularity but is indisposed to sacrifice to it his integrity; hence he is disposed on all popular subjects to feel the public pulse, and hence results indecision and an expression of doubt."6

It was perhaps fortunate for the Federal Judiciary, of which he was now to take command, that John Marshall was on occasion " feel the public pulse." A headstrong pilot might speedily have dashed his craft on the rocks; a timid, one would have abandoned his course; but Marshall did neither. The better answer to Sedgwick's fears was given in 1805 when John Randolph declared that Marshall's "real worth was never known until he was appointed Chief Justice." And Sedgwick is further confuted by the portraits of the Chief Justice, which, with all their diversity, are in accord on that stubborn chin, that firm placid mouth, that steady, benignant gaze, so capable of putting attorneys out of countenance when they had to face it overlong. Here are the lineaments of self-confidence unmarred by vanity, of dignity without condescension, of tenacity untouched by fanaticism, and above all, of an easy conscience and unruffled serenity. It required the lodestone of a great and thoroughly congenial responsibility to bring to light Marshall's real metal.


1Beveridge, vol. I, pp. 171-73.

2This review of conditions under the later Confederation is taken from Story's "Discourse," which is in turn based, at this point, on Marshall's "Life of Washington" and certain letters of his to Story.

3J. Elliot, Debates (Edition of 1836), vol. III, p. 503. As to Bills of Rights, however, Marshall expressed the opinion that they were meant to be "merely recommendatory. Were it otherwise, ...many laws which are found convenient would be unconstitutional." Op. cit., vol.III, p. 509.

5Letter from Sedgwick to King, May 11, 1800. Life and Correspondence of Rufus King, vol. III, pp. 236-7.

6Op. cit.

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