John Marshall and the Constitution

l's Ear

hen 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

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 r?le of Calhoun instead of that very different r?le he actually did fill. There was, indeed, one great planter wi

ns. 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 Marsha

er. 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

. 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

ony 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 se

tism brought him popularity among men. Though but a lieutenant, he was presently made a deputy judge advocate. In this position he displayed notable

e 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,

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

e, vol. I,

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 an

endatory, 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 cri

from Story's Discourse, which is in turn based, at this point, on

e, 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

ond: "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 h

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

owers. 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." 1 On the other hand, Marshall scoffed at the idea that th

all expressed the opinion that they were meant to be "merely recommendatory. Were it otherwise,

he same time his private interests were becoming more closely interwoven with his political principles and personal affiliations, and his talents were maturing. Hit

anhood a few months after his accession to the Supreme Bench. It

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, be

personality as an orator at the time when

ible 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,

antageously 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

anner, the correspondent simplicity and energy of his style; the close and logical connexion of his

e; 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 bu

tice; 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 su

e 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 the

ohn Marshall, v

, 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 d

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

nual 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 b

d 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, h

ssembled 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

y, "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 execu

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

11, 1800. Life and Correspondence

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 continue

used 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 honor

p.

n 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 cou