Marshall was usually most scrupulous to steer clear of partisan politics both in his letters and in his conversation, so that on one occasion he was much aroused by a newspaper article which had represented him "as using language which could be uttered only by an angry party man." But on political issues of a broader nature he expressed himself freely in the strict privacy of correspondence at least, and sometimes identified himself with public movements, especially in his home State. For instance, he favored the gradual abolition of slavery by private emancipation rather than by governmental action. In 1823 he became first president of the Richmond branch of the Colonization Society; five years later he presided over a convention to promote internal improvements in Virginia; and in 1829 he took a prominent part in the deliberations of the State Constitutional Convention.

In the broader matters of national concern his political creed was in thorough agreement with his constitutional doctrine. Nullification he denounced as "wicked folly," and he warmly applauded Jackson's proclamation of warning to South Carolina. But Marshall regarded with dismay Jackson's aggrandizement of the executive branch, and the one adverse criticism he has left of the Constitution is of the method provided for the election of the President. In this connection he wrote in 1830: "My own private mind has been slowly and reluctantly advancing to the belief that the present mode of choosing the Chief Magistrate threatens the most serious danger to the public happiness. The passions of men are influenced to so fearful an extent, large masses are so embittered against each other, that I dread the consequences.... Age is, perhaps, unreasonably timid. Certain it is that I now dread consequences that I once thought imaginary. I feel disposed to take refuge under some less turbulent and less dangerous mode of choosing the Chief Magistrate." Then follows the suggestion that the people of the United States elect a body of persons equal in number to one-third of the Senate and that the President be chosen from among this body by lot. Marshall's suggestion seems absurd enough today, but it should be remembered that his fears of national disorder as a result of strong party feeling at the time of presidential elections were thoroughly realized in 1860 when Lincoln's election led to secession and civil war, and that sixteen years later, in the Hayes-Tilden contest, a second dangerous crisis was narrowly averted.

In the campaign of 1832 Marshall espoused privately the cause of Clay and the United States Bank, and could not see why Virginia should not be of the same opinion. Writing to Story in the midst of the campaign he said: "We are up to the chin in politics. Virginia was always insane enough to be opposed to the Bank of the United States, and therefore hurrahs for the veto. But we are a little doubtful how it may work in Pennsylvania. It is not difficult to account for the part New York may take. She has sagacity enough to see her interests in putting down the present Bank. Her mercantile position gives her a control, a commanding control, over the currency and the exchanges of the country, if there be no Bank of the United States. Going for herself she may approve this policy; but Virginia ought not to drudge for her." To the end of his days Marshall seems to have refused to recognize that the South had a sectional interest to protect, or at least that Virginia's interests were sectional; her attachment to State Rights he assigned to the baneful influence of Jeffersonianism.

The year 1831 dealt Marshall two severe blows. In that year his robust constitution manifested the first signs of impairment, and he was forced to undergo an operation for stone. In the days before anaesthetics, such an operation, especially in the case of a person of his advanced years, was attended with great peril. He faced the ordeal with the utmost composure. His physician tells of visiting Marshall the morning he was to submit to the knife and of finding him at breakfast:

"He received me with a pleasant smile... and said, 'Well, Doctor, you find me taking breakfast, and I assure you I have had a good one. I thought it very probable that this might be my last chance, and therefore I was determined to enjoy it and eat heartily.'... He said that he had not the slightest desire to live, laboring under the sufferings to which he was subjected, and that he was perfectly ready to take all the chances of an operation, and he knew there were many against him.... After he had finished his breakfast, I administered him some medicine; he then inquired at what hour the operation would be performed. I mentioned the hour of eleven. He said 'Very well; do you wish me for any other purpose, or may I lie down and go to sleep?' I was a good deal surprised at this question, but told him that if he could sleep it would be very desirable. He immediately placed himself upon the bed and fell into a profound sleep, and continued so until I was obliged to rouse him in order to undergo the operation. He exhibited the same fortitude, scarcely uttering a murmur throughout the whole procedure which, from the nature of his complaint, was necessarily tedious."

The death of his wife on Christmas Day of the same year was a heavy blow. Despite her invalidism, she was a woman of much force of character and many graces of mind, to which Marshall rendered touching tribute in a quaint eulogy composed for one of his sons on the first anniversary of her death:

"Her judgment was so sound and so safe that I have often relied upon it in situations of some perplexity.... Though serious as well as gentle in her deportment, she possessed a good deal of chaste, delicate, and playful wit, and if she permitted herself to indulge this talent, told her little story with grace, and could mimic very successfully the peculiarities of the person who was its subject. She had a fine taste for belle-lettre reading.... This quality, by improving her talents for conversation, contributed not inconsiderably to make her a most desirable and agreeable companion. It beguiled many of those winter evenings during which her protracted ill health and her feeble nervous system confined us entirely to each other. I shall never cease to look back on them with deep interest and regret.... She felt deeply the distress of others, and indulged the feeling liberally on objects she believed to be meritorious.... She was a firm believer in the faith inculcated by the Church in which she was bred, but her soft and gentle temper was incapable of adopting the gloomy and austere dogmas which some of its professors have sought to engraft on it."

Marshall believed women were the intellectual equals of men, because he was convinced that they possessed in a high degree "those qualities which make up the sum of human happiness and transform the domestic fireside into an elysium," and not because he thought they could compete on even terms in the usual activities of men.

Despite these "buffetings of fate," the Chief Justice was back in Washington in attendance upon Court in February, 1832, and daily walked several miles to and from the Capitol. In the following January his health appeared to be completely restored. "He seemed," says Story, with whom he messed, along with Justices Thompson and Duval, "to revive, and enjoy anew his green old age." This year Marshall had the gratification of receiving the tribute of Story's magnificent dedication of his "Commentaries" to him. With characteristic modesty, the aged Chief Justice expressed the fear that his admirer had "consulted a partial friendship farther than your deliberate judgment will approve." He was especially interested in the copy intended for the schools, but he felt that "south of the Potomac, where it is most wanted it will be least used," for, he continued, "it is a Mohammedan rule never to dispute with the ignorant, and we of the true faith in the South adjure the contamination of infidel political works. It would give our orthodox nullifyer a fever to read the heresies of your Commentaries. A whole school might be infected by the atmosphere of a single copy should it be placed on one of the shelves of a bookcase."

Marshall sat on the Bench for the last time in the January term of 1835. Miss Harriet Martineau, who was in Washington during that winter, has left a striking picture of the Chief Justice as he appeared in these last days. "How delighted," she writes, "we were to see Judge Story bring in the tall, majestic, bright-eyed old man,—old by chronology, by the lines on his composed face, and by his services to the republic; but so dignified, so fresh, so present to the time, that no compassionate consideration for age dared mix with the contemplation of him."

Marshall was, however, a very sick man, suffering constant pain from a badly diseased liver. The ailment was greatly aggravated, moreover, by "severe contusions" which he received while returning in the stage from Washington to Richmond. In June he went a second time to Philadelphia for medical assistance, but his case was soon seen to be hopeless. He awaited death with his usual serenity, and two days before it came he composed the modest epitaph which appeared upon his tomb: JOHN MARSHALL, SON OF THOMAS AND MARY MARSHALL, WAS BORN ON THE 24TH OF SEPTEMBER, 1755, INTERMARRIED WITH MARY WILLIS AMBLER THE 3D OF JANUARY, 1783, DEPARTED THIS LIFE THE — DAY OF —,18 —. He died the evening of July 6,1835, surrounded by three of his sons. The death of the fourth, from an accident while he was hurrying to his father's bedside, had been kept from him. He left also a daughter and numerous grandchildren.

Marshall's will is dated April 9, 1832, and has five codicils of subsequent dates attached. After certain donations to grandsons named John and Thomas, the estate, consisting chiefly of his portion of the Fairfax purchase, was to be divided equally among his five children. To the daughter and her descendants were also secured one hundred shares of stock which his wife had held in the Bank of the United States, but in 1835 these were probably of little value. His faithful body servant Robin was to be emancipated and, if he chose, sent to Liberia, in which event he should receive one hundred dollars. But if he preferred to remain in the Commonwealth, he should receive but fifty dollars; and if it turned out to "be impracticable to liberate him consistently with law and his own inclination," he was to select his master from among the children, "that he may always be treated as a faithful meritorious servant."

The Chief Justice's death evoked many eloquent tributes to his public services and private excellencies, but none more just and appreciative than that of the officers of court and members of the bar of his own circuit who knew him most intimately. It reads as follows:

"John Marshall, late Chief Justice of the United States, having departed this life since the last Term of the Federal Circuit Court for this district, the Bench, Bar, and Officers of the Court, assembled at the present Term, embrace the first opportunity to express their profound and heartfelt respect for the memory of the venerable judge, who presided in this Court for thirty-five years—with such remarkable diligence in office, that, until he was disabled by the disease which removed him from life, he was never known to be absent from the bench, during term time, even for a day,—with such indulgence to counsel and suitors, that every body's convenience was consulted, but his own,—with a dignity, sustained without effort, and, apparently, without care to sustain it, to which all men were solicitous to pay due respect,—with such profound sagacity, such quick penetration, such acuteness, clearness, strength, and comprehension of mind, that in his hand, the most complicated causes were plain, the weightiest and most difficult, easy and light,—with such striking impartiality and justice, and a judgment so sure, as to inspire universal confidence, so that few appeals were ever taken from his decisions, during his long administration of justice in the Court, and those only in cases where he himself expressed doubt,—with such modesty, that he seemed wholly unconscious of his own gigantic powers,—with such equanimity, such benignity of temper, such amenity of manners, that not only none of the judges, who sat with him on the bench, but no member of the bar, no officer of the court, no juror, no witness, no suitor, in a single instance, ever found or imagined, in any thing said or done, or omitted by him, the slightest cause of offence.

"His private life was worthy of the exalted character he sustained in public station. The unaffected simplicity of his manners; the spotless purity of his morals; his social, gentle, cheerful disposition; his habitual self-denial, and boundless generosity towards others; the strength and constancy of his attachments; his kindness to his friends and neighbours; his exemplary conduct in the relations of son, brother, husband, father; his numerous charities; his benevolence towards all men, and his ever active beneficence; these amiable qualities shone so conspicuously in him, throughout his life, that, highly as he was respected, he had the rare happiness to be yet more beloved."

There is no more engaging figure in American history, none more entirely free from disfiguring idiosyncrasy, than the son of Thomas Marshall.



CHAPTER IX. Epilogue

In the brief period of twenty-seven months following the death of Marshall the Supreme Court received a new Chief Justice and five new Associate Justices. The effect of this change in personnel upon the doctrine of the Court soon became manifest. In the eleventh volume of Peters's "Reports," the first issued while Roger B. Taney was Chief Justice, are three decisions of constitutional cases sustaining state laws which on earlier argument Marshall had assessed as unconstitutional. The first of these decisions gave what was designated "the complete, unqualified, and exclusive" power of the State to regulate its "internal police" the right of way over the "commerce clause" *; the second practically nullified the constitutional prohibition against "bills of credit" in deference to the same high prerogative * *; the third curtailed the operation of the "obligation of contracts" clause as a protection of public grants. * * * Story, voicing "an earnest desire to vindicate his [Marshall's] memory from the imputation of rashness," filed passionate and unavailing dissents. With difficulty he was dissuaded from resigning from a tribunal whose days of influence he thought gone by. * * * * During the same year Justice Henry Baldwin, another of Marshall's friends and associates, published his "View of the Constitution," in which he rendered high praise to the departed Chief Justice's qualifications as expounder of the Constitution. "No commentator," he wrote, "ever followed the text more faithfully, or ever made a commentary more accordant with its strict intention and language.... He never brought into action the powers of his mighty mind to find some meaning in plain words... above the comprehension of ordinary minds.... He knew the framers of the Constitution, who were his compatriots," he was himself the historian of its framing, wherefore, as its expositor, "he knew its objects, its intentions." Yet in the face of these admissions, Baldwin rejects Marshall's theory of the origin of the Constitution and the corollary doctrine of liberal construction. "The history and spirit of the times," he wrote, "admonish us that new versions of the Constitution will be promulgated to meet the varying course of political events or aspirations of power."

* Milton vs. New York. 11 Peters, 102.

* * Briscoe vs. Bank of Kentucky, 11 Peters, 257.

* * * Charles River Bridge Company vs. Warren Bridge Company, 11 Peters, 420.

* * * * He wrote Justice McLean, May 10, 1837: "There will not, I fear, even in our day, be any case in which a law of a State or of Congress will be declared unconstitutional; for the old constitutional doctrines are fast fading away." "Life and Letters of Joseph Story." vol. II, p. 272; see also p. 270, for Chancellor Kent's unfavorable reaction to these decisions.

But the radical impulse soon spent itself. Chief Justice Taney himself was a good deal of a conservative. While he regarded the Supreme Court rather as an umpire between two sovereignties than as an organ of the National Government for the vigorous assertion of its powers, which was Marshall's point of view, Taney was not at all disposed to disturb the law as it had been declared by his predecessor in binding decisions. Then, too, the development of railroading and the beginning of immigration from Europe on a large scale reawakened the interest of a great part of the nation in keeping intercourse between the States untrammeled by local selfishness; and in 1851 the Court, heeding the spirit of compromise of the day, decisively accepted for the most important category of cases Marshall's principle of the exclusive control of interstate and foreign commerce by Congress. *

* Cooley vs. the Board of Wardens, 12 Howard, 299.

Still, until the eve of the Civil War, the theory of the Constitution held by the great body of the people, North as well as South, was that it was a compact of States. Then in December, 1860, South Carolina announced her secession from the Union. Buchanan's message of the same month performed the twofold service of refuting secession on State Rights principles and of demonstrating, albeit unwittingly, how impossible it was practically to combat the movement on the same principles. Lincoln brought the North back to Marshall's position when he remarked in his Inaugural Address: "Continue to execute all the express provisions of our National Constitution, and the Union will endure forever."

The Civil War has been characterized as "an appeal from the judgments of Marshall to the arbitrament of war." Its outcome restored the concept of the National Government as a territorial sovereign, present within the States by the superior mandate of the American People, and entitled to "execute on every foot of American soil the powers and functions that belong to it." * These powers and functions are, moreover, today undergoing constant enlargement. No one now doubts that in any clash between national and state power it is national power which is entitled to be defined first, and few persons question that it ought to be defined in the light of Marshall's principle, that a Constitution designed for ages to come must be "adapted to the various crises of human affairs."

* Justice Bradley in ex parte Siebold, 100 U.S., 371.

It is only when we turn to that branch of Constitutional Law which defines governmental power in relation to private rights that we lose touch with Marshall's principles. As we have seen, he dealt in absolutes: either power was given to an unlimited extent or it was withheld altogether. Today, however, the dominant rule in this field of Constitutional Law is the "rule of reason." In the last analysis, there are few private rights which are not subordinate to the general welfare; but, on the other hand, legislation which affects private rights must have a reasonable tendency to promote the general welfare and must not arbitrarily invade the rights of particular persons or classes. Inasmuch as the hard and fast rules of an age when conditions of life were simpler are no longer practicable under the more complex relationships of modern times, there is today an inevitable tendency to force these rules to greater flexibility. *

* Notwithstanding what is said above, it is also true that the modern doctrine of "the police power" owes something to Marshall's interpretation of the "necessary and proper" clause in M'Culloch vs. Maryland, which is frequently offered nowadays as stating the authoritative definition of "a fair legislative discretion" in relation to private rights. Indeed this ingenious transposition was first suggested in Marshall's day. See Cowen (N. Y.), 585. But it never received his sanction and does not represent his point of view.

And this difference in the point of view of the judiciary connotes a general difference of outlook which makes itself felt today even in that field where Marshall wrought most enduringly. The Constitution was established under the sway of the idea of the balance of power, and with the purpose of effecting a compromise among a variety of more or less antagonistic interests, some of which were identified with the cause of local autonomy, others of which coalesced with the cause of National Supremacy. The Nation and the States were regarded as competitive forces, and a condition of tension between them was thought to be not only normal but desirable. The modern point of view is very different. Local differences have to a great extent disappeared, and that general interest which is the same for all the States is an ever deepening one. The idea of the competition of the States with the Nation is yielding to that of their cooperation in public service. And it is much the same with the relation of the three departments of Government. The notion that they have antagonistic interests to guard is giving way to the perception of a general interest guarded by all according to their several faculties. In brief, whereas it was the original effort of the Constitution to preserve a somewhat complex set of values by nice differentiations of power, the present tendency, born of a surer vision of a single national welfare, is toward the participation of all powers in a joint effort for a common end.

But though Marshall's work has been superseded at many points, there is no fame among American statesmen more strongly bulwarked by great and still vital institutions. Marshall established judicial review; he imparted to an ancient legal tradition a new significance; he made his Court one of the great political forces of the country; he founded American Constitutional Law; he formulated, more tellingly than any one else and for a people whose thought was permeated with legalism, the principles on which the integrity and ordered growth of their Nation have depended. Springing from the twin rootage of Magna Charta and the Declaration of Independence, his judicial statesmanship finds no parallel in the salient features of its achievement outside our own annals.



BIBLIOGRAPHICAL NOTE

All accounts of Marshall's career previous to his appointment as Chief Justice have been superseded by Albert J. Beveridge's two admirable volumes, "The Life of John Marshall" (Boston, 1916). The author paints on a large canvas and with notable skill. His work is history as well as biography. His ample plan enables him to quote liberally from Marshall's writings and from all the really valuable first-hand sources. Both text and notes are valuable repositories of material. Beveridge has substantially completed a third volume covering the first decade of Marshall's chief-justiceship, and the entire work will probably run to five volumes.

Briefer accounts of Marshall covering his entire career will be found in Henry Flanders's "Lives and Times of the Chief Justices of the Supreme Court" (1875) and Van Santvoord's "Sketches of the Lives, Times, and Judicial Services of the Chief Justices of the Supreme Court" (1882). Two excellent brief sketches are J. B. Thayer's "John Marshall" (1901) in the "Riverside Biographical Series," and W. D. Lewis's essay in the second volume of "The Great American Lawyers," 8 vols. (Philadelphia, 1907), of which he is also the editor. The latter is particularly happy in its blend of the personal and legal, the biographical and critical. A. B. Magruder's "John Marshall" (1898) in the "American Statesman Series" falls considerably below the general standard maintained by that excellent series.

The centennial anniversary of Marshall's accession to the Supreme Bench was generally observed by Bench and Bar throughout the United States, and many of the addresses on the great Chief Justice's life and judicial services delivered by distinguished judges and lawyers on that occasion were later collected by John F. Dillon and published in "John Marshall, Life, Character, and Judicial Services," 3 vols. (Chicago, 1903). In volume XIII of the "Green Bag" will be found a skillfully constructed mosaic biography of Marshall drawn from these addresses.

The most considerable group of Marshall's letters yet published are those to Justice Story, which will be found in the "Massachusetts Historical Society Proceedings," Second Series, volume XIV, pp. 321-60. These and most of the Chief Justice's other letters which have thus far seen the light of day will be found in J. E. Oster's "Political and Economic Doctrines of John Marshall" (New York, 1914). Here also will be found a copy of Marshall's will, of the autobiography which he prepared in 1818 for Delaplaine's "Repository" but which was never published there, and of his eulogy of his wife. The two principal sources of Marshall's anecdotes are the "Southern Literary Messenger," volume II, p.181 ff., and Henry Howe's "Historical Collections of Virginia" (Charleston, 1845). Approaching the value of sources are Joseph Story's "Discourse upon the Life, Character, and Services of the Hon. John Marshall" (1835) and Horace Binney's "Eulogy" (1835), both of which were pronounced by personal friends shortly after Marshall's death and both of which are now available in volume III of Dillon's compilation, cited above. The value of Marshall's "Life of Washington" as bearing on the origin of his own point of view in politics was noted in the text (Chapter VIII).

Marshall's great constitutional decisions are, of course, accessible in the Reports, but they have also been assembled into a single volume by John M. Dillon, "John Marshall; Complete Constitutional Decisions" (Chicago, 1903), and into two instructively edited volumes by Joseph P. Cotton, "Constitutional Decisions of John Marshall" (New York, 1905). Story's famous "Commentaries on the Constitution" gives a systematic presentation of Marshall's constitutional doctrines, which is fortified at all points by historical reference; the second edition is the best. For other contemporary evaluations of Marshall's decisions, often hostile, see early volumes of the "North American Review" and Niles's "Register;" also the volumes of the famous John Taylor of Caroline. A brief general account of later date of the decisions is to be found in the "Constitutional History of the United States as Seen in the Development of American Law" (New York, 1889), a course of lectures before the Political Science Association of the University of Michigan. Detailed commentary of a high order of scholarship is furnished by Walter Malins Rose's "Notes" to the Lawyers' Edition of the United States Reports, 13 vols. (1899-1901). The more valuable of Marshall's decisions on circuit are collected in J. W. Brockenbrough's two volumes of "Reports of Cases Decided by the Hon. John Marshall" (Philadelphia, 1837), and his rulings at Burr's Trial are to be found in Robertson's "Reports of the Trials of Colonel Aaron Burr," 2 vols. (1808).

Marshall's associates on the Supreme Bench are pleasingly sketched in Hampton L. Carson's "Supreme Court of the United States" (Philadelphia, 1891), which also gives many interesting facts bearing on the history of the Court itself. In the same connection Charles Warren's "History of the American Bar" (Boston, 1911) is, also valuable both for the facts which it records and for the guidance it affords to further material. Of biographies of contemporaries and coworkers of Marshall, the most valuable are John P. Kennedy's "Memoirs of the Life of William Wirt," 2 vols. (Philadelphia, 1880); William Wetmore Story's "Life and Letters of Joseph Story," 2 vols. (Boston, 1851); and William Kent's "Memoirs and Letters of James Kent" (Boston, 1898). Everett P. Wheeler's "Daniel Webster the Expounder of the Constitution" (1905) is instructive, but claims far too much for Webster's influence upon Marshall's views. New England has never yet quite forgiven Virginia for having had the temerity to take the formative hand in shaping our Constitutional Law. The vast amount of material brought together in Gustavus Myers's "History of the Supreme Court" (Chicago, 1912) is based on purely ex parte statements and is so poorly authenticated as to be valueless. He writes from the socialistic point of view and fluctuates between the desire to establish the dogma of "class bias" by a coldly impartial examination of the "facts" and the desire to start a scandal reflecting on individual reputations.

The literature of eulogy and appreciation is, for all practical purposes, exhausted in Dillon's collection. But a reference should be made here to a brief but pertinent and excellently phrased comment on the great Chief Justice in Woodrow Wilson's "Constitutional Government in the United States" (New York, 1908), pp.158-9.

THE END