John Marshall

Front matter

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AMERICAN STATESMEN

Preface

THE great fame of John Marshall, as chief justice of the United States, has so far overshadowed the remembrance of his other services to his countrymen as to render many of them oblivious of his public career as soldier, legislator, envoy, historian, and statesman, both previous to and after his elevation to the first place on the Supreme Bench. These pages are designed to supply these almost forgotten features of his active, busy life, in addition to sketching his more familiar career on the bench.

The author has received material aid from the immediate descendants and family connections of the chief justice, the admirable memorial discourse of Judge Story, and the excellent memoir by Mr. Horace Binney of the Philadelphia bar. He is also largely indebted to the industry and discriminating research of Mr. Henry Flanders, in his “ Lives and Times of the Chief Justices,’ of which he has freely availed himself for facts and incidents which lend interest to the narrative.

STEPHENS City, VIRGINIA.

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Contents

CHAP. 2 PAGE I. Yourr . : : ; : ‘ ; : : 1 II. Minrrary SERyICE . a ' ; 5 : 9° Til. Ar roe Bar : : : 0 . . o 2 IV. In tHe Srate LEGISLATURE . ‘ : ' 49 V. In rHe ConsrirurionaL CONVENTION OF VIRGINIA . : : é ; : ; 2) 96 VI. Return ro tHE Bak... oie es 87 VII. Tue Frenco Mission : : : ; - 100 VIII. In Coneress . : ‘ - : ' : 129 IX. In Mr. Apams’s CABINET . ‘ f ; . 148 . CHIEF JUSTICE . ee ; : eel XI. Trrat or Aaron Burr For Hich Treason 199 XII. Tue ‘ Lire or WasHINGTON” . ; . - 228

ILLUSTRATIONS

JOHN MARSHALL . . . . = 3 « « « «© «: Hrontisprece From a miniature by St. Mémin, in the possession of Miss Annie Harvie, of Richmond, a daughter of the only daughter of Chief Justice Marshall. The negative was kindly lent by Mrs. Sallie Marshall Hardy, of Louisville, Ky.

Chapter I Youth

JoHN MarsHau was born on the 24th day of September in the year 1755, at Germantown, a roadside village in what was then the frontier county of Fauquier in the colony of Virginia ; the place is now known as Midland, a station on the Virginia Midland Railroad. Attaining his majority in 1776, he entered active life at an eventful period. Colonel Thomas Marshall, his father, was born in the county of Westmoreland in Virginia, in what is still known as the Northern Neck, —a peninsula thus named by reason of its location between those bold and beautiful rivers, the Potomac and the Rappahannock. Of this country the late Governor Barbour of Virginia was wont to say: “It is the prolific soil that grows presidents,” —in allusion to the fact that when these words were uttered Westmoreland had contributed to the national service Washington, Madison, and Monroe, three out of the five persons who up to that time had held that rank.

What Boston was to Massachusetts, Westmoreland was to the other counties of Virginia ; the birthplace and the home of the Washingtons, the Lees, the Masons, the Taliaferros, the Marshalls, the Madisons, the Monroes, the Graysons, the Roanes, the Beverlys, the Bankheads, the Balls, the McCartys, the Blands, and the Carters, it became a sentinel on the watch-tower of liberty, — the herald to announce the approach of danger. It was here that the friends of freedom first perceived the danger-signal, as early as 1765, the date of the first Stamp Act. They drew up the earliest Declaration of colonial rights, which was written by Richard Henry Lee, whose name, signed first upon the page, is followed by one hundred and fourteen others of the chief men of the county. This is said to have been the first public association in the land for resistance to that act.1

The Marshall family were of British descent, having emigrated from Wales to the colonies. They were distinguished by their intellect and force of character. The grandfather of the chief justice was John Marshall, who left

1 See Bishop Meade’s Old Families of Virginia, vol. ii. p- 434, Appendix.

YOUTH 3 four sons, the most distinguished of whom was Thomas, father of the great judge, whose talents and character gave him a high rank in the colony. He was born in 1782, the year of Washington’s birth, and was sent to school at the academy of Archibald Campbell, a Scotchman, descended from a branch of the family of the Duke of Argyle, a clergyman of the Episcopal Church, and a thorough scholar. Thomas Marshall became a land surveyor, and accompanied Washington, who was his neighbor and had been his schoolmate, in his surveying expeditions for Lord Fairfax. He was afterward a lieutenant of Virginia troops in the French war, and was present at the defeat of Braddock. He was several times elected to the Virginia House of Burgesses, never failing to obtain the suffrages of the people, whose respect and confidence he held in the fullest measure; and he warmly participated in all the earliest movements to encourage the colonists in resistance to British tyranny. When the call to arms was made in Virginia, he was one of the first to offer his services, and was a field officer of the first regiment raised. In his first engagement, at the battle of the Great Bridge in 1775 with a detachment of British troops under Lord Dunmore, he was distinguished for valor and good conduct. Afterwards he successively commanded in the Continental line the Third Virginia Infantry and the First Virginia Artillery, as their colonel, serving most of the time with Woodford’s brigade. He was in the battles of Germantown and Brandywine, having three horses killed under him, and in the latter engagement contributed largely by his courage and skill to save the American army. He endured, with three of his sons, all the hardships of the winter campaign at Valley Forge. Subsequently he was ordered to join the southern army, and with a part of his regiment he was taken prisoner at Charleston. During the term of his parole he made his first visit to Kentucky through the wilderness, in 1780. Returning to Virginia, he remained to the close of the war, and in 1785 emigrated with the younger members of his family to Kentucky, near Versailles, in Woodford County, which he procured to be named Woodford, after his old friend and commander. In the early history of Kentucky he bore a scarce less active, distinguished, and patriotic part than he had done in his native State. He died in 1806, at the home of his son, Captain Thomas Marshall, in Mason County, and lies buried in the family cemetery near Washington, in that State.

In token of his great bravery and patriotic services, Colonel Marshall was presented by Edmund Randolph, attorney-general in Wash.

YOUTH 5 ington’s cabinet, and also governor of Virginia, with a splendid sword, now in possession of one of his descendants in Kentucky, and preserved as a precious heirloom in the family.

The wife of Colonel Thomas Marshall was Mary Isham Keith. Her father, James Keith, was an Episcopal minister, and cousin-german to the last Earl Marischal and to Field-Marshal James Keith, one of the most valued of the great Frederick’s lieutenants, who saved the Prussian army and fell at Hochkirch, “as poor as a Scot, though he had had the ransoming of three cities.”

Of the mother of the chief justice we know but little more than that she bore fifteen children, — seven sons and eight daughters, — and that she reared them all to mature years. She could have had little opportunity to make any other record for herself, and could hardly have made a better one. Of the fifteen, John Marshall was the first born. The date of the removal of Colonel Thomas Marshall from Westmoreland to Fauquier is not certainly known. It must have been soon after his marriage, for his son John was born, as we have seen, at Germantown in Fauquier, in 1755. Subsequently he acquired, and moved to, the fine estate of Oak Hill, in another part of the same county, which continued to be the seat of the Marshall family up to a recent date. Colonel Marshall was a gentleman of intelligence and plain education, and devoted himself personally to the training of his children. He had a private teacher from Scotland, a Mr. James Thompson, a clergyman, who came to this country and took up his residence in the family of Colonel Marshall in 1767, and instructed his sons, John and James, and others.

Of Colonel Thomas Marshall, Judge Story, deriving his information from contemporary sources, says: “He was a man of uncommon capacity and vigor of intellect, and, though his original education was imperfect, he overcame this disadvantage by the diligence and perseverance with which he cultivated his natural endowments; so that he soon acquired, and maintained throughout the course of his life, among associates of no mean character, the reputation of masculine sense and extraordinary ability. No better proof indeed need be adduced to justify this opinion than the fact that he possessed the unbounded confidence, respect, and admiration of all his children at that mature period of their lives when they were fully able to appreciate his worth, and to compare and measure him with other men of known eminence. I have often heard the chief justice speak of him in terms of the deepest affection

YOUTH 7 and reverence. I do not here refer to his public remarks, but to his private and familiar conversations with me, when there was no other listener. Indeed, he never named his father on these occasions without dwelling on his character with a fond and winning enthusiasm. It was a theme on which he broke out with a spontaneous eloquence ; and in the spirit of the most persuasive confidence, lie would delight to expatiate upon his virtues and talents. ‘My father’ (would he say with kindled feelings and emphasis) ‘my father was a far abler man than any of his sons. To him I owe the solid foundation: of all my own success in life.’ ”

John Marshall early evinced a strong love for English literature, especially in the departments of poetry and history. At the early age of twelve it is said that he knew by heart a large portion of Pope’s writings, and had made himself familiar with Dryden, Shakespeare, and Milton. Subsequently, at the age of fourteen, he was sent to school in Westmoreland County, to the classical academy of the Messrs. Campbell, in which formerly his father and General Washington had been pupils, and where James Monroe was one of his fellow students. Returning home at the end of his term, he continued his study of Latin, reading Horace and Livy.

1 Discourse on the Life of Marshall, p. 9.

He pursued these studies under the direction of his old preceptor, Mr. Thompson, who was an accomplished classicist. Fortunately he was also fond of athletic sports and exercises in the open air. He began the study of law at the age of eighteen; but the impending struggle with Great Britain so absorbed his mind as to interrupt his _ studies before he had obtained a license to practice. He joined a company of volunteers, and by precept and example stimulated the spirit of resistance to British oppression.

Chapter II Military Service

JoHN MarsHALL was not yet twenty years of age when he enrolled himself in a volunteer company, which had been formed mainly by his efforts. His attention seems to have been wholly given to. perfecting himself in the necessary drill and equipment for efficient military service in the field. .The zeal and ardor of the young soldier, and the boldness and spirit with which he inspired others at this period, are well represented to us in a graphic account by a kinsman who was an eye-witness of Marshall’s first appearance in the role of military leader in his own county.

“Tt was in May, 1775. He was then a youth of nineteen. The muster-field was some twenty miles distant from the court-house, and in a section of the country peopled by tillers of the earth. Rumors of the occurrences near Boston had circulated, with the effect of alarm and agitation, but without the means of ascertaining the truth, for not a newspaper was printed nearer than Williamsburg, nor was one taken within the bounds of the militia company, though large. The captain had called the company together, and was expected to attend, but did not. John Marshall had been appointed lieutenant in it. Soon after Lieutenant Marshall’s appearance on the ground, those who knew him clustered about him to greet him, others from curiosity and to hear the news.

“He proceeded to inform the company that the captain would not be there, and that he had been appointed lieutenant instead of a better; that he had come to meet them as fellow soldiers, who were likely to be called on to defend their country and their own rights and liberties, invaded by the British; that there had been a battle at Lexington, in Massachusetts, between the British and Americans, in which the Americans were victorious, but that more fighting was expected; that soldiers were called for, and that it was time to brighten up their firearms and learn to use them in the field; and that if they would fall into a single line, he would show them the new manual exercise, for which purpose he had brought his gun, — bringing it up to his shoulder. The sergeants put the men in line, and their fugleman presented himself in front to the right.

‘“‘His figure I have now before me. He was about six feet high, straight, and rather slender, of dark complexion, showing little if any rosy red, yet good health, the outline of the face nearly a circle, and within that eyes dark to blackness, strong and penetrating, beaming with intelligence and good-nature ; an upright forehead, rather low, was terminated in a horizontal line by a mass of raven black hair of unusual thickness and strength; the features of the face were in harmony with this outline, and the temples fully developed. The result of this combination was interesting and very agreeable. The body and limbs indicated agility rather than strength, in which, however, he was by no means deficient. He wore a purple or plain blue hunting shirt, and trousers of the same material fringed with white; and a round black hat, mounted with the buck’s tail for a cockade, crowned the figure and the man. He went through the manual exercise by word and motion, deliberately pronounced and performed in the presence of the company, before he required the men to imitate him ; and then proceeded to exercise them with the most perfect temper. Never did man possess a temper more happy, or, if otherwise, more subdued and better disciplined. ’

“‘ After a few lessons the company were dismissed, and informed that if they wished to hear more about the war, and would form a circle around him, he would tell them what he understood about it. The circle was formed, and he addressed the company for something like an hour. I remember, for I was near him, that he spoke at the close of his speech of the minute battalion about to be raised, and said he was going into it and expected to be joined by many of his hearers. He then challenged an acquaintance to a game of quoits, and they closed the day with foot races and other athletic exercises, at which there was no betting. He had walked ten miles to the muster-field, and returned the same distance on foot to his father’s house at Oak Hill, where he arrived a little after sunset.” ?

‘When news was received of the battle of Lexington, and then of the march of Patrick Henry upon Williamsburg, the colonial capital of Virginia, young Marshall addressed his company in eloquent terms, urging them to prepare for every emergency, and be ready to march to the front at a moment’s warning. Lord Dunmore, the governor, had caused some powder to be seized by night from the magazine belonging to the colony at Williamsburg, and conveyed on board an armed schooner then lying in James River. Patrick Henry immediately assembled an independent company, and with characteristic boldness marched upon the capital to recapture the powder by force. He was, however, met on the way by a messenger from the governor, who paid the full value of it in money; whereupon Henry and his party returned. Dunmore, haying fortified his “‘ palace,” issued a proclamation declaring all armed forces in the colony to be rebels. About the same time letters from Dunmore to England were intercepted, which, being filled with misrepresentations, greatly incensed the people. Thus situated, his lordship became apprehensive of personal danger, abandoned his government, and went on board a man-of-war

1 Eulogy on John Marshall, by Horace Binney, pp. 22-24.

then lying in James River, and which, having received him, dropped down to Norfolk. About the same time Governor Martin of North Carolina took refuge on board a national ship in Cape Fear River, and in South Carolina Lord William Campbell also abandoned his government and retired.

The occurrences to the northward, the hostile attitude of parties at home, and the liability and expectation of being called into immediate service, induced the volunteers of Culpeper, Orange, and Fauquier counties to constitute themselves a regiment of minute-men. This was doubtless the organization to which young Marshall referred, in his address to the militia, as about to be formed. They were the first minute-men raised in Virginia, and numbered about three hundred and fifty. Lawrence Taliaferro was chosen their colonel, Edward Stevens lieutenant-colonel, and Thomas Marshall major. The future chief justice himself received the appointment of first lieutenant in one of the companies of the same regiment.

These were the citizen soldiery who, John Randolph said in the Senate of the United States, in one of his rambling speeches, “‘ were raised in a minute, armed in a minute, marched in a minute, fought in a minute, and vanquished in a minute.” Certainly their appearance was calculated to strike terror into the hearts of the enemy. ‘They were dressed in green hunting shirts, “ home-spun, home-woven, and homemade,” with the words “ Liberty or Death” in large white letters on their bosoms. Their banner displayed a coiled rattlesnake, with the motto, “Don’t tread on me.” They wore in their hats buck-tails, and in their belts tomahawks and scalping-knives. Their savage and warlike appearance excited the terror of the inhabitants as they marched through the country to Williamsburg. Lord Dunmore told his troops before the action at the Great Bridge, which we shall presently describe, that if they fell into the hands of the shirt-men they would be scalped; an apprehension, it is said, which induced several of them to prefer death to captivity. To the honor of the shirt-men, however, it should be observed that they treated the British prisoners with great kindness —a kindness which was felt and gratefully acknowledged.

Early in June Lord Dunmore, then at Norfolk and still apprehensive for his personal safety, fled on board of a man-of-war. With the British shipping off the coast of Virginia at his command, he possessed the means of annoying the Virginians, though without being able to strike any effective blow. Through the autumn of 1775 both parties were kept on the alert, but nothing very serious occurred. At length, on November 7, Dunmore proclaimed martial law, denounced as traitors all who were capable of bearing arms and did not resort to his majesty’s standard, and offered freedom to all slaves, belonging to rebels, who would join his majesty’s troops. He set up his standard in Norfolk and Princess Anne counties, prescribed an oath of allegiance, and received a considerable accession to his force from the loyalists.

The Virginians had collected provisions for their troops, which were stored at Suffolk, eighteen miles southwest of Norfolk. To seize these provisions was an object of great importance to Lord Dunmore, and to prevent the seizure was an object of not less moment to the Virginia troops. The provisional government perceived clearly the danger of allowing Lord Dunmore to maintain his foothold at Norfolk, and orders were issued immediately to Colonel Woodford to proceed with a detachment of his minute-men, including Marshall’s company, to protect the supplies at Suffolk, and to drive the enemy from Norfolk. The opposing forces confronted each other at the Great Bridge, as it was called, built over a branch of the Elizabeth River, and lying about twelve miles from Norfolk by the only practicable road to Suffolk. Dunmore, apprised of Woodford’s movements, selected a strong position on the eastern side of the bridge, and erected a stockade-fort, which was supplied with many pieces of artillery. The approach to the bridge was commanded by his cannon, which were trained upon the causeway over which the Americans must pass. The morale of Dunmore’s troops, however, was not equal to his intrenchments. They consisted of two hundred regulars, a corps of Norfolk loyalists, and an undisciplined mob of every class and color. Woodford wisely threw up a breastwork at his end of the causeway, and neither party seemed disposed to begin the attack, several days having elapsed without any serious assault on either side. The Virginia troops were much superior to the enemy in number and character, though for the most part unaccustomed to warfare; yet, being young men of character and full of enthusiasm, oo were quite ready for the conflict.

Lieutenant Marshall had now his first. experience of war, and in the action which followed he is said to have borne an honorable part, contributing largely by his skill and valor, and by the steadiness of his company’s fire, to the success of the day.

Colonel Woodford, perceiving that the enemy were reluctant to begin the attack, resorted to stratagem to induce them todo so. An intelligent servant of Major Marshall’s, whose fidelity could be relied on, instructed beforehand as to his story, deserted to the enemy and carried a report that the troops at the other end of the causeway did not exceed three hundred shirt-men. Dunmore, deceived by this report, determined to advance to the attack, and dispatched his regulars, with about three hundred blacks and loyalists, to drive the Virginians from their position. The attack was led, on December 9, by Captain Fordyce, a brave and accomplished officer. The assailants were exposed, as they advanced, to the galling fire of the Virginia troops, who were protected by their breastwork. The effect was overpowering. Not more than twenty or thirty minutes were consumed in the action, and then the British, with a heavy loss, were totally routed. They abandoned their intrenchments, spiked their cannon, and fled precipitately to their ships at Norfolk. The Virginians pursued them into Norfolk, and here Marshall remained with his corps until the town was bombarded and burned by the British menof-war on January 1. Then, there being no longer occasion for his services there, his company returned to their homes in Fauquier.

They were not permitted, however, to remain long inactive, but were reorganized and became a part of the eleventh regiment of Virginia troops. They were then ordered to join the army of Washington in New Jersey, which was falling back slowly before the British troops commanded by Sir William Howe, who was soon after succeeded by Sir Henry Clinton. The American army, notwithstanding its successes at Trenton and Princeton, was in a wretched condition, both as to numbers and matériel. Washington’s letters describing its wants and necessities, and urging relief from the authorities, were so touching as to draw tears from those who read them. In view of the actual state of affairs, he wrote, “ nothing but a good face and false appearances have enabled us to deceive the enemy concerning our strength.” When Marshall joined the army of Washington in the Jerseys during this period of profound gloom, patient endurance of suffering formed the highest quality of the soldier.

On the opening of the campaign in May, 1777, Lieutenant Marshall was promoted to a captaincy, but in a position thus subordinate he had slender opportunities to distinguish himself or to attract the eye of his superiors. It can only be said that he omitted no opportunity to engage in the most active service that offered. He was personally engaged, with his command, ih the battles of Iron Hill, Brandywine, Germantown, and Monmouth, where the corps to which he was attached underwent many hardships and performed memorable service. On December 19, Washington with his exhausted troops went into winter quarters at Valley Forge. The season was one of unusual severity. The cold was extreme, yet the soldiers were often almost naked, without blankets to lie on, and often without shoes, so that their march might sometimes be tracked by the blood from their feet. Their provisions were always scant, and occasionally they were actually destitute ; yet they took up their winter quarters within a day’s march of the enemy, without other shelter to protect them than the rude huts which they hastily constructed of logs and mud. They submitted to all these hardships and _ privations without complaint, and were always on the alert against threatened attacks of the enemy, who occupied the city of Philadelphia. Well might Washington say of them that “no history now extant can furnish an instance of an army suffering such uncommon hardships and bearing them with the same patience and fortitude.” } Marshall’s messmates during this memorable winter were Lieutenant Robert Porterfield, Captain Charles Porterfield, Captain Johnson, and Lieutenant Philip Slaughter.

The last-named 1 Washington’s Writings, vol. v. pp. 821-829, has left a record of the sufferings they endured from lack of food and clothes. He relates that his own supply of linen was reduced to one shirt, and that, while having this washed, he wrapped himself in a blanket. Most of the officers gave all their clothing, except what they were actually wearing, to their almost naked soldiers. Slaughter had wristbands and a collar made from the bosom of his shirt to complete his uniform for parade. Many of the officers were even more scantily supplied than he, having no under-garment whatever. They all lived in huts, although the snow was up to their knees, and not one soldier in five had a blanket. The country people used to bring them supplies, which, though far from inviting, were bought and consumed with great eagerness. The Dutch women might frequently be seen riding into camp seated on great bags, which contained one or two bushels each of apple pies, baked so hard that they could be thrown across the room without being the worse for it. Yet these were considered a delicacy and were much enjoyed. Washington every day invited the officers, in rotation, to dine with him at his private table, but these invitations were usually declined by reason of the lack of decent clothing to appear in. Slaughter, being in a state of comparative affluence, often went in place of the others, in order, as he said, that his regiment might be represented.

Of Marshall, Slaughter says : —

“He was the best-tempered man I ever knew. During his sufferings at Valley Forge nothing discouraged, nothing disturbed him. If he had only bread to eat, it was just as well; if only meat, it made no difference. If any of the officers murmured at their deprivations he would shame them by goodnatured raillery, or encourage them by his own exuberance of spirits. He was an excellent companion, and idolized by the soldiers and his brother officers, whose gloomy hours were enlivened by his inexhaustible fund of anecdote.”

Another account from a contemporary says that at this time his judicial capacity and fairness were held in such estimation by many of his brother officers that, in many disputes of a certain description, he was constantly chosen arbiter ; and that officers, irritated by difference and animated by debate, often submitted the contested points to his judgment, which, given in writing, and accompanied, as it commonly was, by sound reasons in support of his decision, obtained general acquiescence. At this period, besides his field service, he acted as deputy judge advocate of the army, and thus came into personal relations with Washington, securing a confidence and regard of lifelong duration.

On the evacuation of Philadelphia by Sir Henry Clinton, in June, 1778, the American force was immediately put in motion with a view to harass and annoy the retreating army. Marshall was in the battle of Monmouth, which ensued, and he remained with his command throughout the campaign as well as during the succeeding winter. About this time he was so fortunate as to be connected with two of the most brilliant actions that occurred during the campaign ef 1779. He was with Wayne at the assault on Stony Point, on the night of June 16; and subsequently with the detachment to cover the retreat of Major Lee, after his surprise of the enemy’s post at Powles’s Hook, on July 19, an enterprise which reflected lustre on the American arms.

Toward the close of that year, a part of the Virginia line was detached and sent to South Carolina, to cooperate in the defense of that State; but it so happened that Marshall was attached to the other part, which remained with Washington, but whose term of enlistment soon after expired. He was thus left without any command, and. was ordered with other supernumeraries to return to Virginia and take charge of such men as the State might raise for them, it being in the contemplation of the General Assembly to raise a new corps to supply the place of those whose term of service had thus come to an end. Accordingly he repaired to Williamsburg, where the legislature was in session. While the subject was under discussion in the General Assembly and awaiting its tardy action, he took advantage of the opportunity to attend a course of law lectures delivered by the learned and celebrated Chancellor Wythe of William and Mary College; also the lectures of Bishop Madison, the president of the college, on natural philosophy. Thus he was enabled in the ensuing summer to obtain a license to practice law, but his sense of duty to his country _ soon drew him back to the army. The project for raising additional forces in Virginia seems to have failed, and, tired of inaction, he set out alone and on foot to make the long and wearisome journey to headquarters. On his arrival in Philadelphia, it is said that his appearance and outfit were so shabby that the landlord of the hotel to which he came refused him admittance. He thus resumed his connection with the army; but soon afterward, hearing of the invasion of Virginia by the British troops under General Leslie, in 1780, he again returned thither, and joined the small force under Baron Steuben, who had been left by General Greene (on his way to assume the command of the southern army) for the defense of the State.