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JOHN MARSHALL, the most illustrious of America's Judges, was the eldest son of Colonel Thomas Marshall, and Mary Keith, his wife. He was born on the twenty-fourth day of Septomber, 1755, in Germantown, Fauquier County, Virginia. His youthful days were passed on the family estate, where he acquired the rudiments of an education, under the instruction of his father. At the age of fourteen he commenced his classical studies with a Mr. Campbell, with whom he remained a year, after which he returned to his home, and continued his studies with a Scotch gentleman, who had been inducted as pastor of the parish, and resided in his father's family. Here he made rapid progress, but on the expiration of a year, his instructor left him to his own unassisted resources; and his subsequent knowledge of the classics was attained without any other aid than his grammar and dictionary. In the literature of his native tongue he continued to receive the assistance of his father, who directed his studies, and contributed to cherish his love of knowledge. “It is to this circumstance," says his friend and associate, “that we are mainly to attribute that decided attachment to the writers of the golden age of English literature, which at all times he avowed, and vindicated with a glowing confidence in its importance, and its superior excellence." This parental care and attention was neither lost nor forgotten. It was a theme on which Mr. Marshall, in his mature years, delighted to expatiate. “My father," he would say, “was a far abler man than any of his sons. To him I owe the solid foundation of all my own success in life."
Mr. Marshall was entering upon his eighteenth year, when the difficulties between the American colonies and Great Britain began to assume a threatening aspect. In those affairs he manifested a deep interest. Relinquishing his literary labors, he devoted himself with spirit and energy to the acquisition of military knowledge, and to the diligent study of the politics of the day. In the summer of 1775, he was chosen a lieutenant in a company of minute-men, and in September of that year marched against Lord Dunmore, to obstruct that officer's progress through the lower counties of Virginia. Hearing of their approach, Lord Dunmore took a very judicious position on the north side of Elizabeth river, at the great bridge, where it was necessary for the provincials to cross in order to reach Norfolk, at which place he had established himself in some force. Here he erected a small fort on a piece of firm ground, surrounded by a marsh, which was only accessible on either side by a long causeway. The American troops took post within cannon shot of the enemy, in a small village at the south end of the causeway, across which, just at its termination, they constructed a breastwork, but being without artillery, were unable to make any attempt upon the fort. In this position both parties continued for a few days, when Lord Dunmore, participating probably in that contempt for the Americans, which had been so freely expressed in the House of Commons, ordered Captain Fordyce, the commanding officer at the great bridge, though inferior in numbers, to storm the works of the provincials. Between daybreak and sunrise, this officer, at the head of about sixty grenadiers of the fourteenth regiment, who led the column of the enemy, advanced on the causeway, with fixed bayonets against the breastwork. The alarm was immediately given, and as is the prao tice with raw troops, the bravest of the Americans rushed to the works, where, unmindful of order, they kept up a tremendous fire on the front of the British column. Captain Fordyce, though received so warmly in front, and taken in flank, by a small body of men who were collected by Colonel Stevens, of the minute battalion, and posted on an eminence something more than one hundred yards to the left, marched up under this terrible fire with great intrepidity, until he fell dead within a few steps of the breastwork. The column immediately broke, but the British troops being covered in their retreat by the artillery of the fort, were not pursued. In this ill-judged attack, every grenadier is said to have been killed or wounded, while the Americans did not lose a single man. The next night the fort was evacuated. The provincial troops proceeded to Norfolk, and Lord Dunmore found it necessary to take refuge on board his vessels.*
In July, 1776, Mr. Marshall was appointed first lieutenant in the eleventh regiment of the continental troops, and in the following winter, he marched to the middle States, and joined the army of Washington. In the spring of 1777, he was promoted to the rank of captain, and remained in that character, in active service, until the close of the year 1779. He was present at the battles of Germantown, Brandywine, and Monmouth, and was one of that heroic band of patriots who suffered the severities of the memorable winter at Valley Forge. During this period he often acted as deputy judge advocate, a position which gave him an extensive ao quaintance and weighty influence with the officers of the army, by whom he was greatly beloved and respected. “It was during his performance of the duties of judge advocate," says Judge Story, "that he, for the first time I believe, became personally acquainted with General Washington, and I am sure, with colonel, afterwards General Hamilton; for both of whom, it needs scarcely to be said, he always entertained the deepest respect, and whose unreserved friendship, at a subsequent period of his life, he familiarly enjoyed.”
Late in the year 1779, Mr. Marshall returned to Virginia, and commenced a course of study in William and Mary College, attending the law lectures of Chancellor Wythe, and the lectures on natural philosophy of President (afterwards Bishop) Madison. In 1780 he received a license to practise law; and soon after returned to the army, where he continued actively engaged until after Arnold's invasion of Virginia. He now resigned his commission and returned to the prosecution of his professional studies; and on the reopening of the courts of law, after the surrender at Yorktown, commenced practice, in which he soon obtained a high and honorable dis tinction. In 1782 he was a member of the Virginia legislature, and during the same year occupied a seat in the State executive council. In January, 1783, he married Miss Ambler, of Richmond, to which place he removed shortly after, and established his permanent residence.
The duties of his profession, already very arduous, and rapidly increasing, impelled him to resign his position in the State council. But he did not long remain out of public life, being almost immediately elected to the Legislature to represent his native county. Here he con tinued two years, when he was again returned to the same body from the county of Richmond It was in this position that he was disciplined to the "thorough mastery of the true principles of free government.” “My immediate entrance into the State legislature," said he, in a letter written in the latter years of his life, “opened to my view the causes which had been chiefly instrumental in augmenting these sufferings (meaning of the army); and the general tendency of state politics convinced me that no safe and permanent remedy could be found, but in a more efficient and better organized general government."
In the great contest which arose, after the conclusion of the war, between the advocates of an efficient general government and the supporters of the State sovereignties, Virginia took a
* Life of George Washington, by John Marshall, vol. 2, page 371.
prominent part. In her legislative halls, the question," whether the Union ought to be continued or dissolved by a total separation of the States, was freely discussed, and either side of it was maintained, not only without reproach, but with uncompromising fearlessness of consequences. Here Mr. Marshall, side by side with Madison, stood forth on all occasions an inflexible and enlightened advocate for union. It was here that he learned and practised those profound doctrines of rational, limited, constitutional liberty, from which he never shrunk, and to which he resolutely adhered to the end of his life. * * * It was here that he learned to love the Union with a supreme, unconquerable love-a love which was never cooled by neglect, or alienated by disappointment: a love which survived the trials of adversity, and the still more dangerous trials of prosperity: a love which faltered not, fainted not, wearied not on this side the grave."
In 1788, Mr. Marshall was a member of the Virginia Convention, assembled for the ratification of the Federal Constitution. In the debates of that body he took an active part. His speeches on the power of taxation, the powers of the judiciary, and that on the power over the militia, evince many of those sagacious and statesmanlike views which characterized his subsequent life. After the adoption of the constitution, he was elected to the State legislature, where he remained until 1792, when he once more returned to the practice of his profession, and soon became engaged in many of the leading causes in the State and national tribunals. Again in 1795, he was returned to the State legislature, where he greatly distinguished himself by his ability and power in the discussions relating to the treaty negotiated by Mr. Jay.
During the winter of 1796, he visited Philadelphia, to argue an important case before the United States Supreme Court. It was during this sojourn that he became acquainted with many of the most celebrated men of the northern States, who were then in Congress. “I then became acquainted,” said he, “with Mr. Cabot, Mr. Ames, Mr. Dexter, and Mr. Sedgwick, of Massachusetts, Mr. Wadsworth, of Connecticut, and Mr. King, of New York. I was delighted with these gentlemen. The particular subject, the British Treaty, which introduced me to their notice, was at that time so interesting, and a Virginian who supported, with any sort of reputation, the measures of the government, was such & rara avis, that I was received by them all with a degree of kindness which I had not anticipated.” About this time he was invited by Washington to accept the office of Attorney General of the United States, but he declined, on account of its interference with the practice of his profession. He was offered the position of Minister to France, on the recall of Mr. Monroe. This he also declined. “I then thought,” said he, “my determination to remain at the bar unalterable. My situation at the bar appeared to me to be more independent, and not less honorable than any other; my preference for it was decided:"
General Pinckney, of South Carolina, who was subsequently appointed to succeed Mr. Monroe, being refused an audience at the Court of France, Mr. Adams, (who was then President) desirous of an amicable and honorable adjustment of the differences between that nation and his own country, in 1797, appointed Mr. Marshall, Mr. Gerry, and General Pinckney, envoys extraordinary to France; but the envoys were not accredited, and in the summer of 1798, Mr. Marshall returned to the United States. The next year, yielding to the wishes of General Washington, he consented to become a candidate, and after a spirited political contest, was elected to Congress. His services in the memorable session of the winter of 1799 and 1800, were zealous and untiring. His masterly speech in the case of Thomas Nash alias Jongthan Robbins, delivered during this session, will be found in the subsequent pages of this volume.
In May, 1800, he was appointed by President Adams to the office of Secretary of War, but before he entered upon the duties of that station, he was transferred to the head of the department of State. On the resignation of Chief Justice Ellsworth, in 1801, Mr. Marshall was appointed as his successor, and continued on the bench of the Supreme Court of the United States, “ with increasing reputation and unsullied dignity," until his death, on the sixth day of July, 1835.
That event created the deepest regret in the public mind throughout the country. Eulogies upon his character and judicial services were pronounced by the most eminent members of the profession to which he belonged, all of which evince the highest sentiments of respect and admiration. One of the most carefully prepared and elaborate of these was a discourse delivered at the request of the Suffolk Bar, at Boston, by Mr. Justice Story, which has been freely used in the preparation of this sketch, and to which the reader is referred, as the best and most complete estimate of his life, character, and services.
THE FEDERAL CONSTITUTION.*
Mr. Marshall delivered the following speech, I gentleman, Mr. Henry, has said.* He has exin the Virginia Convention for the ratification patiated on the necessity of a due attention to
certain maxims—to certain fundamental prinof the Federal Constitution, on the tenth of
ciples, from which a free people ought never to June, 1788, the preamble and the first, and depart. I
| depart. I concur with him in the propriety of second section of the first article of the con- the observance of such maxims. They are nestitution being under consideration :
cessary in any government, but more essential
to a democracy than to any other. What are Mr. CHAIRMAN: I conceive that the object
the favorite maxims of democracy? A strict of the discussion now before us is, whether de
observance of justice and public faith, and a mocracy or despotism be most eligible. I am
steady adherence to virtue. These, sir, are the sure that those who framed the system, sub
principles of a good government. No mischief, mitted to our investigation, and those who now
no misfortune, ought to deter us from a strict
observance of justice and public faith. Would support it, intend the establishment and secu
to Heaven that these principles had been obrity of the former. The supporters of the con- 1 stitution claim the title of being firm friends of
this been the case, the friends of liberty would the liberty and the rights of mankind. They
not be so willing now to part with it. Can we say that they consider it as the best means of protecting liberty. We, sir, idolize democracy.
boast that our government is founded on these
maxims? Can we pretend to the enjoyment Those who oppose it have bestowed eulogiums
of political freedom or security, when we are on monarchy. We prefer this system to uny I told that a man has been, by an act of Assemmonarchy, because we are convinced that it has a greater tendency to secure our liberty
bly, struck out of existence without a trial by and promote our happiness. We admire it, be- Dary,
jury, without examination, without being con
fronted with his accusers and witnesses, withcause we think it a well regulated democracy: it is recommended to the good people of this
out the benefits of the law of the land? Where country: they are, through us, to declare whe
is our safety, when we are told that this act
was justifiable, because the person was not a ther it be such a plan of government as will
Socrates? What has become of the worthy establish and secure their freedom.
member's maxims? Is this one of them? Shall Permit me to attend to what the honorable
it be a maxim that a man shall be deprived of
his life without the benefit of law? Shall such * So general was the conviction that the public welfare a deprivation of life be justified by answering, required a government of more extensive powers than that the man's life was not taken secundum those vested in the General Government by the Articles artem, because he was a bad man? Shall it be of Confederation, that in May, 1787, a convention composed a maxim that government ought not to be emof delegates from all the States in the Union, with the powered to protect virtue? exception of Rhode Island, assembled at Philadelphia, to The honorable member, after attempting to tako thc subject into consideration. This convention con- | vindicate that tyrannical legislative act to which tinued its sessions with closed doors, until the seventeenth I have been alluding, proceeded to take a view of the following September, when the Federal Constitution of the dangers to which this country is exposed. was promulgated. The convention resolved, " That the He told us that the principal danger arose from Constitution be laid before the United States, in Congress a government which, if adopted, would give assembled, and that it is the opinion of this convention that
away the Mississippi. I intended to proceed it should afterwards be submitted to a convention of dele
regularly, by attending to the clause under degates, chosen in each State by the people thereof, for their bate: but I must reply to some observations assent and ratification; ” and in conformity with this re- 1 which were dwelt upon to make impressions on commendation, Congress, on the twenty-eighth of the same
our minds unfavorable to the plan upon the month, passed a resolution directing that the Constitution should be submitted to conventions to be assembled in the
table. Ilave we no navigation in, or do we several States of the Union. The conventions subsequently assembled, and the expediency of adopting the Constitution * See the speeches of Patrick Henry, at pages 13-89 of the was ably and eloquently discussed.
| first volume of this work.
derive no benefit from, the Mississippi? How! They have proposed to our consideration, a shall we retain it? By retaining that weak scheme of government which they thought adgovernment which has hitherto kept it from visable. We are not bound to adopt it, if we us? Is it thus that we shall secure that navi-disapprove of it. Had not every individual in gation? Give the government the power of this community a right to tender that scheme retaining it, and then we may hope to derive which he thought most conducive to the wel. actual advantages from it. Till we do this, we fare of his country? Have not several gentlecannot expect that a government which hitherto men already demonstrated that the convention has not been able to protect it, will have the did not exceed their powers? But the Congress power to do it hereafter. · Have we attended have the power of making bad laws, it seems. too long to consider whether this government The Senate, with the President, he informs us, would be able to protect us? Shall we wait for may make a treaty which shall be disadvanfurther proofs of its inefficacy? If on mature tageous to us; and that, if they be not good consideration, the constitution will be found to men, it will not be a good constitution. I shall be perfectly right on the subject of treaties, ask the worthy member only, if the people at and containing no danger of losing that navi large, and they alone, ought to make laws and gation, will he still object? Will he object be treaties. Has any man this in contemplation? cause eight States are unwilling to part with it? You cannot exercise the powers of government This is no good ground of objection.
personally yourselves. You must trust to agents. He then stated the necessity and probability If so, will you dispute giving them the power of of obtaining amendments. This we ought to acting for you, from an existing possibility that postpone until we come to that clause, and they may abuse it? As long as it is impossible make up our minds whether there be any thing for you to transact your business in person, if unsafe in this system. He conceived it impos- you repose no confidence in delegates, because sible to obtain amendments after adopting it. there is a possibility of their abusing it, you If he was right, does not his own argument can have no government; for the power of prove that in his own conception, previous doing good is inseparable from that of doing amendments cannot be had ? for, sir, if subse- some evil. quent amendments cannot be obtained, shall we We may derive from Holland lessons very get amendments before we ratify? The reasons beneficial to ourselves. Happy that country against the latter do not apply against the for- which can avail itself of the misfortunes of mer. There are in this State, and in every others—which can gain knowledge from that State in the Union, many who are decided ene- source without fatal experience! What has mies of the Union. Reflect on the probable produced the late disturbances in that country conduct of such men. What will they do? | The want of such a government as is on your They will bring amendments which are local table, and having in some measure, such a one in their nature, and which they know will not as you are about to part with. The want of be accepted. What security have we that other proper powers in the government, the conseStates will not do the same. We are told that quent deranged and relaxed administration, the many in the States were violently opposed to violence of contending parties, and inviting it. They are more mindful of local interests. foreign powers to interpose in their disputes, They will never propose such amendments as have subjected them to all the mischiefs which they think would be obtained. Disunion will have interrupted their harmony. I cannot exbe their object. This will be attained by the press my astonishment at his high-colored proposal of unreasonable amendments. This, eulogium on such a government. Can any sir, though a strong cause, is not the only one thing be more dissimilar than the relation bethat will militate against previous amendments. | tween the British government and the colonies, Look at the comparative temper of this country and the relation between Congress and the now, and when the late Federal Convention States? We were not represented in Parliamet. We had no idea then of any particular ment. Here we are represented. Arguments system. The formation of the most perfect which prove the impropriety of being taxed by plan was our object and wish. It was imagined Britain, do not hold against the exercise of that the States would accede to, and be pleased taxation by Congress. with, the proposition that would be made them. Let me pay attention to the observation of Consider the violence of opinions, the prejudices the gentleman who was last up, that the power and animosities which have been since imbibed. of taxation ought not to be given to Congress. Will not these operate greatly against mutual | This subject requires the undivided attention concessions, or a friendly concurrence? This of this House. This power I think essentially will, however, be taken up more properly an- necessary; for without it there will be no effiother time. He says, we wish to have a strong, ciency in the government. We have had a energetic, powerful government. We contend sufficient demonstration of tho vanity of defor a well-regulated democracy. He insinuates pending on requisitions. How, then, can the that the power of the government has been general government exist without this power? enlarged by the convention, and that we may The possibility of its being abused is urged as apprehend it will be enlarged by others. The an argument against its expediency. To very convention did not, in fact, assume any power. I little purpose did Virginia discover the defects