Either the office was made for the man or the man for the office. (George S. Hillard.)I am in love with his character, positively in love. (Joseph Story.)In the midst of these gay circles my mind is carried to my own fireside and to my beloved wife. (Marshall.)Now the man Moses was very meek, above all the men which were upon the face of the earth. (Numbersxii, 3.)
Either the office was made for the man or the man for the office. (George S. Hillard.)
I am in love with his character, positively in love. (Joseph Story.)
In the midst of these gay circles my mind is carried to my own fireside and to my beloved wife. (Marshall.)
Now the man Moses was very meek, above all the men which were upon the face of the earth. (Numbersxii, 3.)
"It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall."[156]So wrote Thomas Jefferson one year after he had ceased to be President. He was counseling Madison as to the vacancy on the Supreme Bench and one on the district bench at Richmond, in filling both of which he was, for personal reasons, feverishly concerned.
We are now to ascend with Marshall the mountain peaks of his career. Within the decade that followed after the close of our second war with Great Britain, he performed nearly all of that vast and creative labor, the lasting results of which have given him that distinctive title, the Great Chief Justice. During that period he did more than any other one man ever has done to vitalize the American Constitution; and, in the performance of that task, his influence over his associates was unparalleled.[157]
When Justices Chase and Cushing died and their successors Gabriel Duval[158]and Joseph Story were appointed, the majority of the Supreme Court, for the first time, became Republican. Yet Marshall continued to dominate it as fully as when its members were of his own political faith and views of government.[159]In the whole history of courts there is no parallel to such supremacy. Not without reason was that tribunal looked upon and called "Marshall's Court." It is interesting to search for the sources of his strange power.
These sources are not to be found exclusively in the strength of Marshall's intellect, surpassing though it was, nor yet in the mere dominance of his will. Joseph Story was not greatly inferior to Marshall in mind and far above him in accomplishments, while William Johnson, the first Justice of the Supreme Court appointed by Jefferson, was as determined as Marshall and was "strongly imbued with the principles of southern democracy, bold, independent, eccentric, and sometimes harsh."[160]Nor did learning give Marshall his commanding influence. John Jay and Oliver Ellsworth were his superiors in that respect; while Story so infinitely surpassed him in erudition that, between the two men, there is nothing but contrast. Indeed, Marshall had no "learning"at all in the academic sense;[161]we must seek elsewhere for an explanation of his peculiar influence.
This explanation is, in great part, furnished by Marshall's personality. The manner of man he was, of course, is best revealed by the well-authenticated accounts of his daily life. He spent most of his time at Richmond, for the Supreme Court sat in Washington only a few weeks each year. He held circuit court at Raleigh as well as at the Virginia Capital, but the sessions seldom occupied more than a fortnight each. 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. To this easy bonhomie was added a sense of humor, always quick to appreciate an amusing situation.
When in Richmond, Marshall often did his own marketing and carried home the purchases he made. The tall, ungainly, negligently clad Chief Justice, ambling along the street, his arms laden with purchases, was a familiar sight.[164]He never would hurry, and habitually lingered at the market-place, chatting with everybody, learning the gossip of the town, listening to the political talk that in Richmond never ceased, and no doubt thus catching at first hand the drift of public sentiment.[165]The humblest and poorest man in Virginia was not more unpretentious than John Marshall.
No wag was more eager for a joke. One day, as he loitered on the outskirts of the market, a newcomer in Richmond, who had never seen Marshall, offered him a small coin to carry home for him a turkey just purchased. Marshall accepted, and, with the bird under his arm, trudged behind his employer. The incident sent the city into gales of laughter, and was so in keeping with Marshall's ways that it has been retold from one generation to another, and is to-day almost as much alive as ever.[166]At another time the Chief Justice was taken for the butcher. He called on a relative's wife who had never met him, and who had not been told of his plain dress and rustic manners. Her husband wished to sell a calf and she expected the butcher to call to make the trade. She saw Marshall approaching, and judging by his appearance that he was the butcher, she directed the servant to tell him to go to the stable where the animal was awaiting inspection.[167]
It was Marshall's custom to go early every morning to a farm which he owned four miles from Richmond. For the exercise he usually walked, but, when hewished to take something heavy, he would ride. A stranger coming upon him on the road would have thought him one of the poorer small planters of the vicinity. He was extremely fond of children and, if he met one trudging along the road, he would take the child up on the horse and carry it to its destination. Often he was seen riding into Richmond from his farm, with one child before and another behind him.[168]
Bishop Meade met Marshall on one of these morning trips, carrying on horseback a bag of clover seed.[169]On another, he was seen holding on the pommel a jug of whiskey which he was taking out to his farmhands. The cork had come out and he was using his thumb as a stopper.[170]He was keenly interested in farming, and in 1811 was elected President of the Richmond Society for Promotion of Agriculture.[171]
The distance from Richmond to Raleigh was, by road, more than one hundred and seventy miles. Except when he went by stage,[172]as he seldom did, it must have taken a week to make this journey. He traveled in a primitive vehicle called a stick gig, drawn by one horse which he drove himself, seldom taking a servant with him.[173]Making his slow waythrough the immense stretches of tar pines and sandy fields, the Chief Justice doubtless thought out the solution of the problems before him and the plain, clear, large statements of his conclusions which, from the bench later, announced not only the law of particular cases, but fundamental policies of the Nation. His surroundings at every stage of the trip encouraged just such reflection—the vast stillness, the deep forests, the long hours, broken only by some accident to gig or harness, or interrupted for a short time to feed and rest his horse, and to eat his simple meal.
During these trips, Marshall would become so abstracted that, apparently, he would forget where he was driving. Once, when near the plantation of Nathaniel Macon in North Carolina, he drove over a sapling which became wedged between a wheel and the shaft. One of Macon's slaves, working in an adjacent field, saw the predicament, hurried to his assistance, held down the sapling with one hand, and with the other backed the horse until the gig was free. Marshall tossed the negro a piece of money and asked him who was his owner. "Marse Nat. Macon," said the slave. "He is an old friend," said Marshall; "tell him how you have helped me," giving his name. When the negro told his master, Macon said: "That was the great Chief Justice Marshall, the biggest lawyer in the United States." The slave grinned and answered: "Marse Nat., he may be de bigges' lawyer in de United States, but he ain't got sense enough to back a gig off a saplin'."[174]
At night he would stop at some log tavern on the route, eat with the family and other guests, if any were present, and sit before the fireplace after the meal, talking with all and listening to all like the simple and humble countryman he appeared to be. Since the minor part of his time was spent in court, and most of it about Richmond, or on the road to and from Raleigh, or journeying to his Fauquier County plantation and the beloved mountains of his youth where he spent the hottest part of each year, it is doubtful whether any other judge ever maintained such intimate contact with people in the ordinary walks of life as did John Marshall.
The Chief Justice always arrived at Raleigh stained and battered from travel.[175]The town had a population of from three hundred to five hundred.[176]He was wont to stop at a tavern kept by a man named Cooke and noted for its want of comfort; but, although the inn got worse year after year, he still frequented it. Early one morning an acquaintance saw the Chief Justice go to the woodpile, gather an armful of wood and return with it to the house. When they met later in the day, the occurrence was recalled. "Yes," said Marshall, "I suppose it is not convenient for Mr. Cooke to keep a servant, so I make up my own fires."[177]
The Chief Justice occupied a small room in which were the following articles: "A bed, ... two split-bottom chairs, a pine table covered with grease and ink, a cracked pitcher and broken bowl." The host ate with his guests and used his fingers instead of fork or knife.[178]When court adjourned for the day, Marshall would play quoits in the street before the tavern "with the public street characters of Raleigh," who were lovers of the game.[179]
He was immensely popular in Raleigh, his familiar manners and the justice of his decisions appealing with equal force to the bar and people alike. Writing at the time of the hearing of the Granville case,[180]John Haywood, then State Treasurer of North Carolina, testifies: "Judge Marshall ... is greatly respected here, as well on account of his talents and uprightness as for that sociability and ease of manner which render all happy and pleased when in his company."[181]
In spite of his sociability, which tempted him, while in Richmond, to visit taverns and the law offices of his friends, Marshall spent most of the day in his house or in the big yard adjoining it, for Mrs. Marshall's affliction increased with time, and the Chief Justice, whose affection for his wife grew as her illness advanced, kept near her as much as possible. In Marshall's grounds and near his house were several great oak and elm trees, beneath which was a spring; to this spot he would take the papers in cases he had to decide and, sitting on a rustic bench under the shade, would write many of those great opinions that have immortalized his name.[182]
Mrs. Marshall's malady was largely a disease of the nervous system and, at times, it seemingly affected her mind. It was a common thing for the Chief Justice to get up at any hour of the night and, without putting on his shoes lest his footfalls might further excite his wife, steal downstairs and drive away for blocks some wandering animal—a cow, a pig, a horse—whose sounds had annoyed her.[183]Even upon entering his house during the daytime, Marshall would take off his shoes and put on soft slippers in the hall.[184]
She was, of course, unequal to the management of the household. When the domestic arrangements needed overhauling, Marshall would induce her to take a long drive with her sister, Mrs. Edward Carrington, or her daughter, Mrs. Jacquelin B. Harvie, over the still and shaded roads of Richmond. The carriage out of sight, he would throw off his coat andvest, roll up his shirt-sleeves, twist a bandanna handkerchief about his head, and gathering the servants, lead as well as direct them in dusting the walls and furniture, scrubbing the floors and setting the house in order.[185]
Numerous incidents of this kind are well authenticated. To this day Marshall's unselfish devotion to his infirm and distracted wife is recalled in Richmond. But nobody ever heard the slightest word of complaint from him; nor did any act or expression of countenance so much as indicate impatience.
In his letters Marshall never fails to admonish his wife, who seldom if ever wrote to him, to care for her health. "Yesterday I received Jacquelin's letter of the 12thinforming me that your health was at present much the same as when I left Richmond," writes Marshall.[186]"John [Marshall's son] passed through this city a day or two past, & although I did not see him I had the pleasure of hearing from Mr. Washington who saw him ... that you were as well as usual."[187]In another letter Marshall says: "Do my dearest Polly let me hear from you through someone of those who will be willing to write for you."[188]Again he says: "I am most anxious to know how you do but no body is kind enough to gratify my wishes.... I looked eagerly for a letter to day but no letter came.... You must not fail when you go to Chiccahominy [Marshall's farm near Richmond]... to carry out blankets enough to keep you comfortable. I am very desirous of hearing what is doing there but as no body is good enough to let me know how you do & what is passing at home I could not expect to hear what is passing at the farm."[189]Indeed, only one letter of Marshall's has been discovered which indicates that he had received so much as a line from his wife; and this was when, an old man of seventy-five, he was desperately ill in Philadelphia.[190]Nothing, perhaps, better reveals the sweetness of his nature than his cheerful temper and tender devotion under trying domestic conditions.[191]
His "dearest Polly" was intensely religious, and Marshall profoundly respected this element of her character.[192]The evidence as to his own views and feelings on the subject of religion, although scanty, is definite. He was a Unitarian in belief and therefore never became a member of the Episcopal church, to which his parents, wife, children, and all other relatives belonged. But he attended services, Bishop Meade informs us, not only because "he was a sincere friend of religion," but also because he wished"to set an example." The Bishop bears this testimony: "I can never forget how he would prostrate his tall form before the rude low benches, without backs, at Coolspring Meeting-House,[193]in the midst of his children and grandchildren and his old neighbors." When in Richmond, Marshall attended the Monumental Church where, says Bishop Meade, "he was much incommoded by the narrowness of the pews.... Not finding room enough for his whole body within the pew, he used to take his seat nearest the door of the pew, and, throwing it open, let his legs stretch a little into the aisle."[194]
It is said, however, that his daughter, during her last illness, declared that her father late in life was converted, by reading Keith on Prophecy, to a belief in the divinity of Christ; and that he determined to "apply for admission to the communion of our Church ... but died without ever communing."[195]There is, too, a legend about an astonishing flash of eloquence from Marshall—"a streak of vivid lightning"—at a tavern, on the subject of religion.[196]The impression said to have been made by Marshall on this occasion was heightened by his appearance when he arrived at the inn. The shafts of his ancient gig were broken and "held together by withes formed from the bark of a hickory sapling"; he was negligently dressed, his knee buckles loosened.[197]
In the tavern a discussion arose among some young men concerning "the merits of the Christian religion." The debate grew warm and lasted "from six o'clock until eleven." No one knew Marshall, who sat quietly listening. Finally one of the youthful combatants turned to him and said: "Well, my old gentleman, what think you of these things?" Marshall responded with a "most eloquent and unanswerable appeal." He talked for an hour, answering "every argument urged against" the teachings of Jesus. "In the whole lecture there was so much simplicity and energy, pathos and sublimity, that not another word was uttered." The listeners wondered who the old man could be. Some thought him a preacher; and great was their surprise when they learned afterwards that he was the Chief Justice of the United States.[198]
His devotion to his wife illustrates his attitude toward women in general, which was one of exalted reverence and admiration. "He was an enthusiast in regard to the domestic virtues," testifies Story. "There was ... a romantic chivalry in his feelings, which, though rarely displayed, except in the circle of his most intimate friends, would there pour out itself with the most touching tenderness." He loved to dwell on the "excellences," "accomplishments," "talents," and "virtues" of women, whom he looked upon as "the friends, the companions, and the equals of man." He tolerated no wit at their expense, no fling, no sarcasm, no reproach. On no phase of Marshall's character does Story place somuch emphasis as on his esteem for women.[199]Harriet Martineau, too, bears witness that "he maintained through life and carried to his grave, a reverence for woman as rare in its kind as in its degree."[200]"I have always believed that national character as well as happiness depends more on the female part of society than is generally imagined," writes Marshall in his ripe age to Thomas White.[201]
Commenting on Story's account, in his centennial oration on the first settlement of Salem, of the death of Lady Arbella Johnson, Marshall expresses his opinion of women thus: "I almost envy the occasion her sufferings and premature death have furnished for bestowing that well-merited eulogy on a sex which so far surpasses ours in all the amiable and attractive virtues of the heart,—in all those qualities which make up the sum of human happiness and transform the domestic fireside into an elysium. I read the passage to my wife who expressed such animated approbation of it as almost to excite fears for that exclusive admiration which husbands claim as their peculiar privilege. Present my compliments to MrsStory and say for me that a lady receives the highest compliment her husband can pay her when he expresses an exalted opinion of the sex, because the world will believe that it is formed on the model he sees at home."[202]
Ten children were born to John Marshall andMary Ambler, of whom six survived, five boys and one girl.[203]By 1815 only three of these remained at home; Jacquelin, twenty-eight years old, James Keith, fifteen, and Edward, ten years of age. John was in Harvard, where Marshall sent all his sons except Thomas, the eldest, who went to Princeton.[204]The daughter, Mary, Marshall's favorite child, had married Jacquelin B. Harvie and lived in Richmond not far from Marshall's house.[205]Four other children had died early.
"You ask," Marshall writes Story, "if MrsMarshall and myself have ever lost a child. We have lost four, three of them bidding fairer for health and life than any that have survived them. One, a daughter about six or seven ... was one of the most fascinating children I ever saw. She was followed within a fortnight by a brother whose death was attended by a circumstance we can never forget.
"When the child was supposed to be dying I tore the distracted mother from the bedside. We soon afterwards heard a voice in the room which we considered as indicating the death of the infant. We believed him to be dead. [I went] into the room and found him still breathing. I returned [and] as the pang of his death had been felt by his mother and [I] was confident he must die, I concealed his being alive and prevailed on her to take refuge with hermother who lived the next door across an open square from her.
"The child lived two days, during which I was agonized with its condition and with the occasional hope, though the case was desperate, that I might enrapture his mother with the intelligence of his restoration to us. After the event had taken place his mother could not bear to return to the house she had left and remained with her mother a fortnight.
"I then addressed to her a letter in verse in which our mutual loss was deplored, our lost children spoken of with the parental feeling which belonged to the occasion, her affection for those which survived was appealed to, and her religious confidence in the wisdom and goodness of Providence excited. The letter closed with a pressing invitation to return to me and her children."[206]
All of Marshall's sons married, settled on various parts of the Fairfax estate, and lived as country gentlemen. Thomas was given the old homestead at Oak Hill, and there the Chief Justice built for his eldest son the large house adjacent to the old one where he himself had spent a year before joining the army under Washington.[207]To this spot Marshall went every year, visiting Thomas and his other sons who lived not far apart, seeing old friends, wandering along Goose Creek, over the mountains, and among the haunts where his first years were spent.
Here, of course, he was, in bearing and appearance, even less the head of the Nation's Judiciary than hewas in Richmond or on the road to Raleigh. He was emphatically one of the people among whom he sojourned, familiar, interested, considerate, kindly and sociable to the last degree. Not one of his sons but showed more consciousness of his own importance than did John Marshall; not a planter of Fauquier, Warren, and Shenandoah Counties, no matter how poorly circumstanced, looked and acted less a Chief Justice of the United States. These characteristics, together with a peculiar generosity, made Marshall the most beloved man in Northern Virginia.
Once, when going from Richmond to Fauquier County, he overtook one of his Revolutionary comrades. As the two rode on together, talking of their war-time experiences and of their present circumstances, it came out that this now ageing friend of his youth was deeply in debt and about to lose all his possessions. There was, it appeared, a mortgage on his farm which would soon be foreclosed. After the Chief Justice had left the inn where they both had stopped for refreshments, an envelope was handed to his friend containing Marshall's check for the amount of the debt. His old comrade-in-arms quickly mounted his horse, overtook Marshall, and insisted upon returning the check. Marshall refused to take it back, and the two friends argued the matter, which was finally compromised by Marshall's agreeing to take a lien upon the land. But this he never foreclosed.[208]
This anecdote is highly characteristic of Marshall. He was infinitely kind, infinitely considerate.Bishop Meade, who knew him well, says that he "was a most conscientious man in regard to some things which others might regard as too trivial to be observed." On one of Meade's frequent journeys with Marshall between Fauquier County and the "lower country," they came to an impassable stretch of road. Other travelers had taken down a fence and gone through the adjoining plantation, and the Bishop was about to follow the same route. Marshall refused—"He said we had better go around, although each step was a plunge, adding that it was his duty, as one in office, to be very particular in regard to such things."[209]
When in Richmond the one sport in which he delighted was the pitching of quoits. Not when a lawyer was he a more enthusiastic or regular attendant of the meetings of the Quoit Club, or Barbecue Club,[210]under the trees at Buchanan's Spring on the outskirts of Richmond, than he was when at the height of his fame as Chief Justice of the United States. More personal descriptions of Marshall at these gatherings have come down to us than exist for any other phase of his life. Chester Harding, the artist, when painting Marshall's portrait during the summer of 1826, spent some time in the Virginia Capital, and attended one of the meetings of the Quoit Club. It was a warm day, and presently Marshall, then in his seventy-second year, was seen coming, his coat on his arm, fanning himself with his hat. Walking straight up to a bowl of mint julep, he poured atumbler full of the liquid, drank it off, said, "How are you, gentlemen?" and fell to pitching quoits with immense enthusiasm. When he won, says Harding, "the woods would ring with his triumphant shout."[211]
James K. Paulding went to Richmond for the purpose of talking to the Chief Justice and observing his daily life. He was more impressed by Marshall's gayety and unrestraint at the Quoit Club than by anything else he noted. "The Chief-Justice threw off his coat," relates Paulding, "and fell to work with as much energy as he would have directed to the decision of ... the conflicting jurisdiction of the General and State Governments." During the game a dispute arose between two players "as to the quoit nearest the meg." Marshall was agreed upon as umpire. "The Judge bent down on one knee and with a straw essayed the decision of this important question, ... frequently biting off the end of the straw" for greater accuracy.[212]
The morning play over, the club dinner followed. A fat pig, roasted over a pit of coals, cold meats, melons, fruits, and vegetables, were served in the old Virginia style. The usual drinks were porter, toddy,[213]and the club punch made of "lemons, brandy, rum, madeira, poured into a bowl one-third filled with ice(no water), and sweetened."[214]In addition, champagne and other wines were sometimes provided.[215]At these meals none of the witty company equaled Marshall in fun-making; no laugh was so cheery and loud as his. 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.
Marshall dearly loved, when at home, to indulge in the giving of big dinners to members of the bench and bar. In a wholly personal sense he was the best-liked man in Richmond. The lawyers and judges living there were particularly fond of him, and the Chief Justice thoroughly reciprocated their regard. Spencer Roane, Judge of the Virginia Court of Appeals, seems to have been the one enemy Marshall had in the whole city. Indeed, Roane and Jefferson appear to have been the only men anywhere who ever hated him personally. Even the testy George Hay reluctantly yielded to his engaging qualities. When at the head of the Virginia bar, Marshall had been one of those leading attorneys who gave the attractive dinners that were so notable and delightful a feature of life in Richmond. After he became Chief Justice, he continued this custom until his "lawyer dinners" became, among men, the principal social events of the place.
Many guests sat at Marshall's board upon these occasions. Among them were his own sons as well as those of some of his guests. These dinners were repetitions within doors of the Quoit Club entertainments, except that the food was more abundant and varied, and the cheering drinks were of better quality—for Marshall prided himself on this feature of hospitality, especially on his madeira, of which he was said to keep the best to be had in America. Wit and repartee, joke, story and song, speech and raillery, brought forth volleys of laughter and roars of applause until far into the morning hours.[216]Marshall was not only at the head of the table as host, but was the leader of the merriment.[217]
His labors as Chief Justice did not dull his delight in the reading of poetry and fiction, which was so keen in his earlier years.[218]At the summit of his career, when seventy-one years old, he read all of Jane Austen's works, and playfully reproved Story for failing to name her in a list of authors given in his Phi Beta Kappa oration at Harvard. "I was a little mortified," he wrote Story, "to find that you had not admitted the name of Miss Austen into your list of favorites. I had just finished reading her novels when I received your discourse, and was so much pleased with them that I looked in it for her name, and was rather disappointed at not finding it. Her flights are not lofty, she does not soar on eagle's wings, but she is pleasing, interesting, equable, andyet amusing. I count on your making some apology for this omission."[219]
Story himself wrote poetry, and Marshall often asked for copies of his verses.[220]"The plan of life I had formed for myself to be adopted after my retirement from office," he tells Story, "is to read nothing but novels and poetry."[221]That this statement genuinely expressed his tastes is supported by the fact that, among the few books which the Chief Justice treasured, were the novels of Sir Walter Scott and an extensive edition of the British poets.[222]While his chief intellectual pleasure was the reading of fiction, Marshall liked poetry even better; and he committed to memory favorite passages which he quoted as comment on passing incidents. Once when he was told that certain men had changed their opinions as a matter of political expediency, he repeated Homer's lines:
"Ye gods, what havoc does ambition make'Mong all your works."[223]
During the six or eight weeks that the Supreme Court sat each year, Marshall was the same in manner and appearance in Washington as he was among his neighbors in Richmond—the same in dress, in habits, in every way. Once a practitioner sent his little son to Marshall's quarters for some legal papers. The boy was in awe of the great man. But the Chief Justice, detecting the feelings of the lad, remarked:"Billy, I believe I can beat you playing marbles; come into the yard and we will have a game." Soon the Chief Justice of the United States and the urchin were hard at play.[224]
If he reached the court-room before the hour of convening court, he sat among the lawyers and talked and joked as if he were one of them;[225]and, judging from his homely, neglected clothing, an uninformed onlooker would have taken him for the least important of the company. Yet there was about him an unconscious dignity that prevented any from presuming upon his good nature, for Marshall inspired respect as well as affection. After their surprise and disappointment at his ill attire and want of impressiveness,[226]attorneys coming in contact with him were unfailingly captivated by his simplicity and charm.
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. "I am in love with his character, positively in love," wrote Story after twenty-fouryears of close and familiar contact.[228]He "rises ... with the nearest survey," again testified Story in a magazine article.[229]
When, however, the time came for him to open court, a transformation came over him. Clad in the robes of his great office, with the Associate Justices on either side of him, no king on a throne ever appeared more majestic than did John Marshall. The kindly look was still in his eye, the mildness still in his tones, the benignity in his features. But a gravity of bearing, a firmness of manner, a concentration and intentness of mind, seemed literally to take possession of the man, although he was, and appeared to be, as unconscious of the change as he was that there was anything unusual in his conduct when off the bench.[230]
Marshall said and did things that interested other people and caused them to talk about him. He was noted for his quick wit, and the bar was fond of repeating anecdotes about him. "Did you hear what the Chief Justice said the other day?"—and then the story would be told of a bright saying, a quick repartee, a picturesque incident. Chief Justice Gibson of Pennsylvania, when a young man, went to Marshall for advice as to whether he should accept a position offered him on the State Bench. The young attorney, thinking to flatter him, remarked that the Chief Justice had "reached the acme of judicial distinction." "Let me tell you what thatmeans, young man," broke in Marshall. "The acme of judicial distinction means the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says."[231]
Wherever he happened to be, nothing pleased Marshall so much as to join a convivial party at dinner or to attend any sort of informal social gathering. On one occasion he went to the meeting of a club at Philadelphia, held in a room at a tavern across the hall from the bar. It was a rule of the club that every one present should make a rhyme upon a word suddenly given. As he entered, the Chief Justice observed two or three Kentucky colonels taking their accustomed drink. When Marshall appeared in the adjoining room, where the company was gathered, he was asked for an extemporaneous rhyme on the word "paradox." Looking across the hall, he quickly answered:
"In the Blue Grass region,A 'Paradox' was born,The corn was full of kernelsAnd the 'colonels' full of corn."[232]
But Marshall heartily disliked the formal society of the National Capital. He was, of course, often invited to dinners and receptions, but he was usually bored by their formality. Occasionally he would brighten his letters to his wife by short mention of some entertainment. "Since being in this place,"he writes her, "I have been more in company than I wish.... I have been invited to dine with the President with our own secretaries & with the minister of France & tomorrow I dine with the British minister.... In the midst of these gay circles my mind is carried to my own fireside & to my beloved wife."[233]
Again: "Soon after dinner yesterday the French Chargé d'affaires called upon us with a pressing invitation to be present at a party given to the young couple, a gentleman of the French legation & the daughter of the secretary of the navy who are lately married. There was a most brilliant illumination which we saw and admired, & then we returned."[234]Of a dinner at the French Legation he writes his wife, it was "rather a dull party. Neither the minister nor his lady could speak English and I could not speak French. You may conjecture how far we were from being sociable. Yesterday I dined with MrVan Buren the secretary of State. It was a grand dinner and the secretary was very polite, but I was rather dull through the evening. I make a poor return for these dinners. I go to them with reluctance and am bad company while there. I hope we have seen the last, but I fear we must encounter one more.[235]With the exception of these parties my time was never passed with more uniformity. I rise early, pour [sic] over law cases, go to court and return atthe same hour and pass the evening in consultation with the Judges."[236]
Chester Harding relates that, when he was in Washington making a full-length portrait of the Chief Justice,[237]Marshall arrived late for the sitting, which had been fixed for eight o'clock in the evening. He came without a hat. Congressman Storrs and one or two other men, having seen Marshall, bare-headed, hurrying by their inn with long strides, had "followed, curious to know the cause of such a strange appearance." But Marshall simply explained to the artist that the consultation lasted longer than usual, and that he had hurried off without his hat. When the Chief Justice was about to go home, Harding offered him a hat, but he said, "Oh, no! it is a warm night, I shall not need one."[238]
No attorney practicing in the Supreme Court was more unreserved in social conversation than was the Chief Justice. Sometimes, indeed, on a subject that appealed to him, Marshall would do all the talking, which, for some reason, would occasionally be quite beyond the understanding of his hearer. Of one such exhibition Fisher Ames remarked to Samuel Dexter: "I have not understood a word of his argument forhalf an hour." "And I," replied the leader of the Massachusetts bar, "have been out of my depth for an hour and a half."[239]
The members of the Supreme Court made life as pleasant for themselves as they could during the weeks they were compelled to remain in "this dismal" place, as Daniel Webster described the National Capital. Marshall and the Associate Justices all lived together at one boarding-house, and thus became a sort of family. "We live very harmoniously and familiarly,"[240]writes Story, one year after his appointment. "My brethren are very interesting men," he tells another friend. We "live in the most frank and unaffected intimacy. Indeed, we are all united as one, with a mutual esteem which makes even the labors of Jurisprudence light."[241]
Sitting about a single table at their meals, or gathered in the room of one of them, these men talked over the cases before them. Not only did they "moot every question as" the arguments proceeded in court, but by "familiar conferences at our lodgings often come to a very quick, and ... accurate opinion, in a few hours," relates that faithful chronicler of their daily life, Joseph Story.[242]Story appears to have been even more impressed by the comradery of the members of the Supreme Court than by the difficulty of the cases they had to decide.
None of them ever took his wife with him to Washington, and this fact naturally made the personal relations of the Justices peculiarly close. "TheJudges here live with perfect harmony," Story reiterates, "and as agreeably as absence from friends and from families could make our residence. Our intercourse is perfectly familiar and unconstrained, and our social hours when undisturbed with the labors of law, are passed in gay and frank conversation, which at once enlivens and instructs."[243]
This "gay and frank conversation" of Marshall and his associates covered every subject—the methods, manners, and even dress of counsel who argued before them, the fortunes of public men, the trend of politics, the incident of the day, the gossip of society. "Two of the Judges are widowers," records Story, "and of course objects of considerable attraction among the ladies of the city. We have fine sport at their expense, and amuse our leisure with some touches at match-making. We have already ensnared one of the Judges, and he is now (at the age of forty-seven) violently affected with the tender passion."[244]
Thus Marshall, in his relation with his fellow occupants of the bench, was at the head of a family as much as he was Chief of a court. Although the discussion of legal questions occurred continuously at the boarding-house, each case was much more fully examined in the consultation room at the Capitol. There the court had a regular "consultation day" devoted exclusively to the cases in hand. Yet, even on these occasions, all was informality, and wit and humor brightened the tediousness. These "consultations" lasted throughout the day and sometimes into the night; and the Justices took their meals while the discussions proceeded. Amusing incidents, some true, some false, and others a mixture, were related of these judicial meetings. One such story went the rounds of the bar and outlived the period of Marshall's life.
"We are great ascetics, and even deny ourselves wine except in wet weather," Story dutifully informed his wife. "What I say about the wine gives you our rule; but it does sometimes happen that the Chief Justice will say to me, when the cloth is removed, 'Brother Story, step to the window and see if it does not look like rain.' And if I tell him that the sun is shining brightly, Judge Marshall will sometimes reply, 'All the better, for our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.'"[245]
When, as sometimes happened, one of the Associate Justices displeased a member of the bar, Marshall would soothe the wounded feelings of the lawyer. Story once offended Littleton W. Tazewell of Virginia by something said from the bench. "On my return from court yesterday," the Chief Justice hastened to write the irritated Virginian, "I informed MrStory that you had been much hurt at an expression used in the opinion he had delivered in the case of the Palmyra. He expressed equal surprize and regret on the occasion, and declared that thewords which had given offense were not used or understood by him in an offensive sense. He assented without hesitation to such modification of them as would render them in your view entirely unexceptionable."[246]
As Chief Justice, Marshall shrank from publicity, while printed adulation aggravated him. "I hope to God they will let me alone 'till I am dead," he exclaimed, when he had reached that eminence where writers sought to portray his life and character.[247]
He did, however, appreciate the recognition given from time to time by colleges and learned societies. In 1802 Princeton conferred upon him the honorary degree of LL.D.; in 1806 he received the same degree from Harvard and from the University of Pennsylvania in 1815. In 1809, as we have seen, he was elected a corresponding member of the Massachusetts Historical Society; on January 24, 1804, he was made a member of the American Academy of Arts and Sciences; and, in 1830, was elected to the American Philosophical Society. All these honors Marshall valued highly.
This, then, was the man who presided over the Supreme Court of the United States when the decisions of that tribunal developed the National powers of the Constitution and gave stability to our National life. His control of the court was made so easy for the Justices that they never resented it; often, perhaps, they did not realize it. The influence of his strong, deep, clear mind was powerfully aidedby his engaging personality. To agree with him was a pleasure.
Marshall's charm was as great as his intellect; he was never irritable; his placidity was seldom ruffled; not often was his good nature disturbed. His "great suavity, or rather calmness of manner, cannot readily be conceived," testifies George Bancroft.[248]The sheer magnitude of his views was, in itself, captivating, and his supremely lucid reasoning removed the confusion which more complex and subtle minds would have created in reaching the same conclusion. The elements of his mind and character were such, and were so combined, that it was both hard and unpleasant to differ with him, and both easy and agreeable to follow his lead.
Above all other influences upon his associates on the bench, and, indeed, upon everybody who knew him, was the sense of trustworthiness, honor, and uprightness he inspired.[249]Perhaps no public man ever stood higher in the esteem of his contemporaries for noble personal qualities than did John Marshall.
When reviewing his constructive work and marveling at his influence over his judicial associates, we must recall, even at the risk of iteration, the figure revealed by his daily life and habits—"a man who is tall to awkwardness, with a large head ofhair, which looked as if it had not been lately tied or combed, and with dirty boots,"[250]a body that seemed "without proportion," and arms and legs that "dangled from each other and looked half dislocated," dressed in clothes apparently "gotten from some antiquated slop-shop of second-hand raiment ... the coat and breeches cut for nobody in particular."[251]But we must also think of such a man as possessed of "style and tones in conversation uncommonly mild, gentle, and conciliating."[252]We must think of his hearty laughter, his "imperturbable temper,"[253]his shyness with strangers, his quaint humor, his hilarious unreserve with friends and convivial jocularity when with intimates, his cordial warm-heartedness, unassuming simplicity and sincere gentleness to all who came in contact with him—a man without "an atom of gall in his whole composition."[254]We must picture this distinctive American character among his associates of the bench in the Washington boarding-house no less than in court, his luminous mind guiding them, his irresistible personality drawing from them a real and lasting affection. We must bear in mind the trust and confidence which so powerfully impressed those who knew the man. We must imagine a person very much like Abraham Lincoln.
Indeed, the resemblance of Marshall to Lincoln is striking. Between no two men in American history is there such a likeness. Physically, intellectually, and in characteristics, Marshall and Lincoln were of the same type. Both were very tall men, slender, loose-jointed, and awkward, but powerful and athletic; and both fond of sport. So alike were they, and so identical in their negligence of dress and their total unconsciousness of, or indifference to, convention, that the two men, walking side by side, might well have been taken for brothers.
Both Marshall and Lincoln loved companionship with the same heartiness, and both had the same social qualities. They enjoyed fun, jokes, laughter, in equal measure, and had the same keen appreciation of wit and humor. Their mental qualities were the same. Each man had the gift of going directly to the heart of any subject; while the same lucidity of statement marked each of them. Their style, the simplicity of their language, the peculiar clearness of their logic, were almost identical. Notwithstanding their straightforwardness and amplitude of mind, both had a curious subtlety. Some of Marshall's opinions and Lincoln's state papers might have been written by the same man. The "Freeholder" questions and answers in Marshall's congressional campaign, and those of Lincoln's debate with Douglas, are strikingly similar in method and expression.
Each had a genius for managing men; and Marshall showed the precise traits in dealing with themembers of the Supreme Court that Lincoln displayed in the Cabinet.
Both were born in the South, each on the eve of a great epoch in American history when a new spirit was awakening in the hearts of the people. Although Southern-born, both Marshall and Lincoln sympathized with and believed in the North; and yet their manners and instinct were always those of the South. Marshall was given advantages that Lincoln never had; but both were men of the people, were brought up among them, and knew them thoroughly. Lincoln's outlook upon life, however, was that of the humblest citizen; Marshall's that of the well-placed and prosperous. Neither was well educated, but each acquired, in different ways, a command of excellent English and broad, plain conceptions of government and of life. Neither was a learned man, but both created the materials for learning.
Marshall and Lincoln were equally good politicians; but, although both were conservative in their mental processes, Marshall lost faith in the people's steadiness, moderation, and self-restraint; and came to think that impulse rather than wisdom was too often the temporary moving power in the popular mind, while the confidence of Lincoln in the good sense, righteousness, and self-control of the people became greater as his life advanced. If, with these distinctions, Abraham Lincoln were, in imagination, placed upon the Supreme Bench during the period we are now considering, we should have a good idea of John Marshall, the Chief Justice of the United States.
It is, then, largely the personality of John Marshall that explains the hold, as firm and persistent as it was gentle and soothing, maintained by him upon the Associate Justices of the Supreme Court; and it is this, too, that enables us to understand his immense popularity with the bar—a fact only second in importance to the work he had to do, and to his influence upon the men who sat with him on the bench.
For the lawyers who practiced before the Supreme Court at this period were most helpful to Marshall.[255]Many of them were men of wide and accurate learning, and nearly all of them were of the first order of ability. No stronger or more brilliant bar ever was arrayed before any bench than that which displayed its wealth of intellect and resources to Marshall and his associates.[256]This assertion is strong, but wholly justified. Oratory of the finest quality, though of the old rhetorical kind, filled the court-room with admiring spectators, and entertained Marshall and the other Justices, as much as the solid reasoning illuminated their minds, and the exhaustive learning informed them.
Marshall encouraged extended arguments; often demanded them. Frequently a single lawyer would speak for two or three days. No limit of time was put upon counsel.[257]Their reputation as speakers as well as their fame as lawyers, together with the throngs of auditors always present, put them on their mettle. Rhetoric adorned logic; often encumbered it. A conflict between such men as William Pinkney, Luther Martin of Maryland, Samuel Dexter of Massachusetts, Thomas Addis Emmet of New York, William Wirt of Virginia, Joseph Hopkinson of Pennsylvania, Jeremiah Mason of New Hampshire, Daniel Webster, Henry Clay, and others of scarcely less distinction, was, in itself, an event. These men, and indeed all the members of the bar, were Marshall's friends as well as admirers.
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. Handsome, 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. His industry was untiring, his memory unfailing. He supplied exactly the accomplishment and toilsomeness that Marshall lacked. So perfectly did the qualities and attainments of these two men supplement one another that, in the work of building the American Nation, Marshall and Story may be considered one and the same person.
Where Marshall was leisurely, Story was eager. If the attainments of the Chief Justice were not profuse, those of his young associate were opulent. Marshall detested the labor of investigating legal authorities; Story delighted in it. The intellect of the older man was more massive and sure; but that of the youthful Justice was not far inferior in strength, or much less clear and direct in its operation. Marshall steadied Story while Story enriched Marshall. Each admired the other, and between them grew an affection like that of father and son.
Story's father, Elisha Story, was a member of the Republican Party, a rare person among wealthy and educated men in Massachusetts at the time Jefferson founded that political organization. The son tells us that he "naturally imbibed the same opinions," which were so reprobated that not "more than four or five lawyers in the whole state ...daredavow themselves republicans. The very name was odious."[258]