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 t.i.tle, the Great Chief Justice. During that period he did more than any other one man ever has done to vitalize the American Const.i.tution; and, in the performance of that task, his influence over his a.s.sociates 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, surpa.s.sing 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 surpa.s.sed 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 he wished 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 way through 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 a.s.sistance, 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. "Ma.r.s.e 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: "Ma.r.s.e 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 and vest, 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 n.o.body 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 12^{th} informing me that your health was at present much the same as when I left Richmond," writes Marshall.[186]

"John [Marshall's son] pa.s.sed 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 pa.s.sing at home I could not expect to hear what is pa.s.sing 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 ill.u.s.trates his att.i.tude 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 so much 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 s.e.x which so far surpa.s.ses 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 pa.s.sage 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 M^{rs} Story and say for me that a lady receives the highest compliment her husband can pay her when he expresses an exalted opinion of the s.e.x, because the world will believe that it is formed on the model he sees at home."[202]

Ten children were born to John Marshall and Mary 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 M^{rs} Marshall 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 circ.u.mstance 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 her mother 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 he was 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 circ.u.mstanced, 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 circ.u.mstances, 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 impa.s.sable 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 a tumbler 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 princ.i.p.al 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 repet.i.tions 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, and yet 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 pa.s.sages which he quoted as comment on pa.s.sing incidents. Once when he was told that certain men had changed their opinions as a matter of political expediency, he repeated Homer's lines: