John Marshall - The Man

JOHN MARSHALL-THE MAN
Harold H. Burtont
"[H]ighly as he was respected, he had the rare happiness to be
yet more beloved." 1 This was said of the late John Marshall, in
1835, in his home city of Richmond, Virginia, by the bar and officers
of the circuit court over which he had presided as a circuit justice for
more than a generation.
Best known today for his creative opinions interpreting the Con-
stitution of the United States as endowing the federal government with
powers adequate for its effective operation, Chief Justice Marshall was
also a vigorous, courageous, warmhearted, and modest man, exemplify-
ing the best traditions of the American Revolution.
Born in Virginia, September 24, 1755, he was the oldest of fifteen
children, nine boys and six girls. Raised among the Blue Ridge
Mountains, he received his early education from local clergymen and
his parents. John's father, Thomas Marshall, built a home at Oak Hill,
and was one of the original subscribers to the first American publication
of Blackstone's Commentaries. Thomas Marshall served in the Vir-
ginia House of Burgesses, at Williamsburg, was sheriff of Fauquier
County and later clerk of Dunmore County. At 19, John was six-feet
tall, straight and slender, with thick black hair and penetrating dark
eyes.
He became a soldier of distinction. At 19, he was a lieutenant,
commanding Virginia "Minute Men" fighting British Grenadiers near
Norfolk. In March, 1776, he was a lieutenant in the Third Virginia
Regiment in which his father was a major. Joining Washington's
army, John took part in the engagements at Iron Hill, Brandywine and
Germantown. At Valley Forge he shared the hunger and cold which
tested America's fortitude and devotion. "[N]othing discouraged,
nothing disturbed" John Marshall 2 A champion at quoits, and gen-
erally a leader in athletic contests, he was nicknamed "Silver Heels"
because of the white yarn that his mother had knitted into the heels
of the woolen stockings in which he won many foot races. Later he
fought at Monmouth, Stony Point, and elsewhere. Soon promoted to
t Associate Justice, Supreme Court of the United States.
1. BROCKENBERAUGH, REPORTS OF CASES DECIDED BY JOHN MARSHALL IN THE
CIcUT COURT OF THE UNITED STATES xviii (1837). This phrase is quoted also in
THAYER, JOHN MARSHALL 155-56 (1901).
2. Lieutenant Slaughter said this of him at Valley Forge, as quoted in 1
BEVERIDGE, THE LIFE OF JOHN MARSHALL 118 (1916).
(3)
4 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 104
a captaincy, he was, by 1793, commissioned a brigadier general in the

Virginia militia. In that capacity he commanded a brigade in the
Whiskey Rebellion, and, until appointed Chief Justice, he usually
was addressed as General Marshall.
John had little formal legal education. He attended but six weeks
of law lectures by George Wythe at William and Mary College, where
he was a member of the debating team of Phi Beta Kappa. At Valley
Forge he had served as a deputy judge advocate. When 25, he received
from his cousin, Thomas Jefferson, then Governor of Virginia, a li-
cense to practice law and was admitted to the bar in Fauquier County
in 1780. In 1782, he was elected to the Virginia House of Delegates
and then to the council of eight members chosen by joint ballot of
the two Houses of the Assembly.
Eight times he was sent to the Assembly. When the new Federal
Constitution was referred to the states for ratification, he urged that
Virginia call a convention to act upon it. Such a convention met in
1788, with Marshall a member of it. His service to the Constitution
dates from that time. In the convention he directed his principal at-
tention to taxation, the militia, and the judiciary and stoutly supported
ratification of the Constitution as a whole. This vital approval was
secured by the narrow margin of ten votes.
While Marshall accepted these calls to public service, he declined
others. In 1789, although named by President Washington as Dis-
trict Attorney of the United States at Richmond, he declined the
nomination. The same was true when Washington offered him the
Attorney Generalship of the United States in 1795, and the post of
Minister to France in 1796. However, in 1797, when the need was
pressing, President Adams induced him to join C. C. Pinckney and
Elbridge Gerry on the XYZ Commission that attempted to adjust in-
ternational differences with France in the days of Talleyrand. In that
capacity he rendered high diplomatic service with widely commended
integrity and skill. Throughout these years he was an active pro-
ponent of Washington's policies, although many Virginians were turn-
ing to the anti-Federalist leadership of Thomas Jefferson.
In 1798 he declined an appointment to the Supreme Court of the
United States to succeed Associate Justice Wilson.' But in the same
year, at the urgent request of George Washington, he ran for Congress
from the Richmond district. He made a vigorous campaign. Unlike
many Federalist candidates, he declared himself against the revival of
the Alien and Sedition Laws, and, with the support of Patrick Henry,
3. George Washington's nephew, Bushrod Washington, received the appointment
and later served on the Court nearly twenty-nine years with Marshall.
1955] CHIEF JUSTICE JOHN MARSHALL
was elected, in April, 1799, to the Sixth Congress by 108 votes. Con-
gress convened in Philadelphia, December 2, and, on December 18,
Marshall performed the painful duty of announcing the death of Wash-
ington. December 19, he offered the resolutions, drafted by "Light-
Horse Harry" Lee, which described Washington as "first in war, first
in peace, and first in the hearts of his countrymen." These were
precisely the sentiments of John Marshall.
In Congress, he pursued an independent course. He cast a crucial
vote, against his party, for the repeal of the most hotly contested section
of the Sedition Law. He killed a Disputed Elections Bill that would
have benefited the Federalists in the next presidential election. On
the other hand, he ably defended the Jay Treaty and the administra-
tion's conduct in a cause cgltbre as to an alleged mutineer who had
been handed over to a British consul.
On May 12, 1800, President Adams named him Secretary of
State and in June, he resigned from Congress to assume his duties in
the cabinet. He declined to use his influence in favor of either side
in the contest between Jefferson and Burr which resulted, on February
17, 1801, in the election of Jefferson as President and Burr as Vice
President. He performed his duties as Secretary of State until late
on the third of March, 1801, although he had been appointed Chief
Justice in January and had been sworn in as such February 4, 1801.
On March 4th, he administered the presidential oath of office to
Jefferson.
Marshall's appointment to the Court terminated most of his ac-
tivities in other governmental fields. To this there was one notable
exception. In 1829, together with ex-Presidents Madison and Monroe,
he accepted election to the Virginia convention called to revise the con-
stitution of that commonwealth. As a member of its judiciary com-
mittee, he helped to secure provisions for an independent judiciary.
The above activities would have constituted a full career for most
men, but in Marshall's case his judicial career became so extraordinary
that his earlier services are but little known. They are important,
however, not only on their own account, but because they help to ex-
plain the breadth of his understanding of constitutional issues.
In the legal profession, he was the leader of his local bar as a
trial lawyer. In 1786, his standing was such that when Edmund
Randolph was elected Governor of Virginia, Marshall took over his
practice. In May of that year, Marshall's name first appeared in the
reports of the Court of Appeals of Virginia.4 In about 1793, with
the help of Robert Morris of Philadelphia, he and several associates
4. As counsel in Hite v. Fairfax, 4 Call 42, 69 (Va. 1786). This was the first
of more than 120 cases he argued in that court.
6 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [VoI. 104
contracted to buy the remaining Fairfax estates of over 160,000 acres

in Virginia. This was his greatest financial undertaking. It caused
him much anxiety but yielded substantial returns. In 1796, he made
an impressive but unsuccessful argument in the Supreme Court of the
United States.5
A disciple of George Washington, he undertook, while Chief
Justice, to write a biography of Washington after the latter's death.
It was primarily a labor of love and an expression of loyalty to Wash-
ington. Forced to early publication between 1802 and 1804, its five
volumes contained valuable historical material, but were neither a
financial nor a literary success. Many years later, he shortened the
work to three volumes. One was published as a preliminary history
of the colonial period and the other two as a Life of Washington.
These were better received. Today they help to confirm the thesis
that Marshall, to a substantial degree, succeeded to Washington's leader-
ship in the establishment of a strong, representative federal republic
dedicated to the preservation for the individual of the greatest freedom
consistent with like freedom for all.
While Marshall's judicial career requires separate treatment for
adequate demonstration of its monumental character, some reference to
it is essential in any biographical sketch of him. He served as Chief
Justice from 1801 to 1835. Such service is longer than that of any
other Chief Justice of the United States, and all of it was rendered
during the crucial formative period of the nation's history. Under
his leadership, the loose stones provided for the nation's structure
were built into a firm foundation.
While best known for the opinions he wrote for the Court in
the exercise of its appellate jurisdiction, he also rendered outstanding
service as a circuit justice. The most famous of his circuit cases was
the trial and acquittal, in 1807, of Aaron Burr on a charge of treason."
Marshall's conduct in this case set an admirable example of judicial
courage and demeanor.
While he was a member of the Supreme Court, it decided sixty-
two cases on questions of constitutional law. In these he wrote thirty-
six opinions for the Court. These are the foundation stones of our
constitutional law upon which his fame and much of the stability of
our federal structure depend.' In appraising this contribution and
5. As counsel in Ware v. Hylton, 3 U.S. (3 Dall.) 199, 210 (1796).
6. United States v. Burr, 25 Fed. Cas. 2-207, Nos. 14692a-14694a (C.C.D. Va.
1807).
7. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Fletcher v. Peck,
10 U.S. (6 Cranch) 87 (1810); Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122
(1819) ; McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) ; Dartmouth College
19551 CHIEF JUSTICE JOHN MARSHALL
Marshall's part in it, it is important to emphasize the fact that these

decisions were not his alone. However, to him as Chief Justice and
author, there must go substantial credit for securing the support of a
majority of the Court. Twenty-three of the decisions were unanimous.
To appreciate this phase of his service, we should see him as the leader
of those able judges who constituted "the Marshall Court." To-
gether, they made, nurtured, and protected great precedents. Chief
Justice Marshall served with fifteen Associate Justices. Seven were
with him many years. They were: Thompson for 12 years, Living-
ston for 16, Todd for 19, Story for 23, Duvall for 23, Washington for
29, and William Johnson for 30 years. There has been no other
period of comparable continuity, and none when continuity was so
essential.
Returning to Marshall the man, he was a devoted husband and
father. Brought up in a large family, he treasured family associa-
tions. On January 3, 1783, he married "Polly" Ambler, one of four
sisters from a distinguished Virginia family. She was not quite 17,
and he was 27. He had been in love with her for three years, since,
as a young army officer, he first saw her in Yorktown. They had ten
children, six of whom survived to maturity, five sons and one daughter.
Although obliged to spend much time in Washington, he delighted to
return to his home in Richmond. There he lived in the Georgian style
brick house which he built on a two-acre plot. He was deeply affected
when his wife died on Christmas Day, 1831. Thereafter, he constantly
wore, on a chain around his neck, a locket containing a lock of her hair.
He, himself, underwent a serious operation in 1831 but regained his
health and lived until July 6, 1835.
The famous Liberty Bell that rang in Philadelphia in 1776 to an-
nounce the Declaration of Independence tolled to announce his death.
His active service and that of the bell ended together, for, as the bell
tolled, it cracked. Their voices were silenced, but they have never
ceased to inspire the nation to seek to fulfill the high mission to which
both Marshall and the bell were dedicated.
Marshall's judicial service is fittingly recognized in the excellent
bronze statue of him, which faces the sunset on the lower west terrace
of the Capitol. Appropriately placed near the place where Marshall
presided over the Court, this statue is the work of W. W. Story, a son
of the Chief Justice's friend and colleague, Associate Justice Story.
It represents the Chief Justice, sitting in his judicial robe, expound-
v. Woodward, 17 U.S. (4 Wheat.) 518 (1819); Cohens v. Virginia, 19 U.S. (6
Wheat.) 264 (1812); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); Ogden v.
Saunders, 25 U.S. (12 Wheat.) 213 (1827); Brown v. Maryland, 25 U.S. (12 Wheat)
419 (1827).
8 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 104
ing upon some subject of deep interest to him as he looks toward the
towering monument erected to the memory of Washington, whom he
so greatly admired.
In keeping with Marshall's devotion to his wife, his body is buried
beside hers in Richmond. And in keeping with his modesty, the
following simple inscriptions, written by him, appear on horizontal
tablets above the graves. On his, we read: "John Marshall, Son of
Thomas and Mary Marshall, was born the 24th of September, 1755.
Intermarried with Mary Willis Ambler, the 3d of January, 1783.
Departed this life the [6th] day of July, 1835." On hers: "Sacred
to the memory of Mrs. Mary Willis Marshall, Consort of John Mar-
shall, Born the 13th of March, 1766. Departed this life the 25th of
December, 1831. This stone is devoted to her memory by him who
best knew her worth, And most deplores her loss."

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JOHN MARSHALL-THE MAN

a captaincy, he was, by 1793, commissioned a brigadier general in the

contracted to buy the remaining Fairfax estates of over 160,000 acres

Marshall's part in it, it is important to emphasize the fact that these

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