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John Marshall (1755--1835) was arguably the most important judicial figure in American history. As the fourth chief justice of the United States Supreme Court, serving from 1801 to1835, he helped move the Court from the fringes of power to the epicenter of constitutional government. His great opinions in cases like Marbury v. Madison and McCulloch v. Maryland are still part of the working discourse of constitutional law in America. Drawing on a new and definitive edition of Marshall's papers, R. Kent Newmyer ...
John Marshall (1755--1835) was arguably the most important judicial figure in American history. As the fourth chief justice of the United States Supreme Court, serving from 1801 to1835, he helped move the Court from the fringes of power to the epicenter of constitutional government. His great opinions in cases like Marbury v. Madison and McCulloch v. Maryland are still part of the working discourse of constitutional law in America. Drawing on a new and definitive edition of Marshall's papers, R. Kent Newmyer combines engaging narrative with new historiographical insights in a fresh interpretation of John Marshall's life in the law. More than the summation of Marshall's legal and institutional accomplishments, Newmyer's impressive study captures the nuanced texture of the justice's reasoning, the complexity of his mature jurisprudence, and the affinities and tensions between his system of law and the transformative age in which he lived. It substantiates Oliver Wendell Holmes Jr.'s view of Marshall as the most representative figure in American law.
Young Man of the Revolution
Our resistance was not made to actual oppression. Americans were not pressed down to the earth by the weight of their chains nor goaded to resistance by actual suffering.... The war was a war of principle against a system hostile to political liberty, from which oppression was to be dreaded, not against actual oppression.
—John Marshall to Edward Everett, August 2, 1826
I am a child of the revolution," exclaimed Governor Edmund Randolph during the opening debate in the Virginia ratifying convention. So he was, and so was each of the other delegates who gathered that dusty June in Richmond to determine the fate of Virginia and the federal Union. So most assuredly was John Marshall, the thirty-two-year-old delegate representing Richmond and Henrico County. It may seem paradoxical that Virginians young and old, established statesmen like Randolph and aspiring ones like Marshall, should all have been children of the Revolution. But that simple fact makes a telling point: generations are not defined by statistical calculations but by the shared experience of history. The more intense and profound the historical moment, the stronger the generational bond.
Perhaps no other event in American history educated those it touched more profoundly than did the American Revolution—if by education we mean the manner in which a culture conveys and transforms itself from one age to the next. No other generationof Americans witnessed the birth of the nation. Never before or since would the reasons for war or the possibilities of peace be so thoroughly and brilliantly discussed by so many. And never would the principles of government settled on be so deeply rooted in the simultaneous acts of thinking and fighting and lawmaking. Never would principles be so thoroughly tested in the laboratory of real politics as during the years between independence and the ratification of the new Constitution. These common characteristics of the age did not, of course, mean that Revolutionary-era Americans agreed on the meaning of their Revolution, but only that the ideas derived from the age were apt to be personalized and internalized and, when the occasion permitted, translated into public institutions and cultural truth with a capital T.
So it was with John Marshall's republican education. For twenty of his first thirty-two years, he was bombarded from every side with the cultural messages of the Revolution. As a youngster under his father's tutelage, from 1765 to 1775, he followed the transforming debate in Virginia over liberty, power, and empire. For six years he soldiered, as an officer in the Virginia militia and then in the Continental line, to protect the principles of liberty agreed upon in the debate. For another six, as a novice lawyer and member of the Virginia legislature, he labored to implement those principles in the context of state politics shaped by the Articles of Confederation. During the debate over the ratification of the Constitution in Virginia in 1788, Marshall stepped forth on the national stage as a champion of the new order. The experience invited him, as it did others at the convention, to distill years of thinking, fighting, and legislating into a public philosophy that informed his life's work. This is not to say he never grew or never changed his mind. He did both. But when Chief Justice Marshall died in 1835 at the age of seventy-nine, he remained what he had always been: a young man of the Revolution.
John Marshall joined the Revolution in late summer 1775, when he arrived at the muster field for the Culpeper minutemen, located near Germantown in the frontier county of Fauquier, Virginia. He walked ten miles to get there from his family's place at Oak Hill—not much of a chore for a lanky nineteen-year-old frontiersman. We know he came with high resolve. His purple-dyed hunting shirt and beaver hat marked him as a member of one of Virginia's numerous militia units that had sprung to life as the struggle with Great Britain heated up. The tomahawk, which hung at his side, was a symbol of his resistance to British authority. The rifle he carried indicated better than words that he meant business. There were words, too, though they come down to us secondhand. After greeting his fellow soldiers, some of whom most likely were friends and acquaintances, he informed them that commanding officer Captain William Pickett would not be there. Recently commissioned Lieutenant Marshall would stand in his place "for want of a better." Marshall passed on the news of fighting from Lexington and Concord that had just reached Virginia, which he had no doubt heard from his father, Thomas, who was already busy organizing a company of volunteers and who as a friend of Washington was instrumental in securing a commission for his eldest son. Lieutenant Marshall went on to say what was obvious enough, but what was in its fusion of individual and national rights remarkably revealing. As he put it, they were gathered there "to defend their country and their own rights and liberties." The job at hand was to "brighten their fire-arms and learn to use them in the field." That said, he ordered the sergeant to deploy the men in a single line and proceeded to instruct them in the "new manual exercise." After that there was more conversation about the cataclysmic events unfolding in Massachusetts, some friendly banter, a few foot races, and a game of quoits. Then the newly minted citizen-soldiers headed their separate ways home.
Two months later they were together again as part of the Culpeper Minuteman Battalion, called into active duty by Colonel Patrick Henry, commander of Virginia's provisional army. The Culpeper troops marched south to Williamsburg in October 1775. From there a detachment of about two hundred, including Lieutenant Marshall, was ordered to the Norfolk-Hampton area to repel marauding British regulars operating under orders from Lord Dunmore, who still claimed to be the rightful governor of Virginia and who was trying to mobilize former slaves and loyalists against the patriots. The skirmish between the untested Virginia minutemen and British regulars took place at Great Bridge outside Norfolk on December 9. It was the first military action since Bunker Hill, and relative to the number of troops involved, it was one of the bloodiest battles of the war. Marshall would later join Washington and other officers of the Continental line in criticizing the reliability of militia fighting units. At Great Bridge, however, they all but annihilated the seasoned British regulars as the British attempted foolishly, with manifest contempt for the patriot-soldiers, to attack over a narrow causeway directly in front of the American positions. The great issues of empire, the talk of liberty and constitutional rights had suddenly translated themselves into an elemental proposition: kill or be killed.
Lieutenant Marshall joined in the bloodletting and in the process was transformed from a boy into a man, from a citizen of the British Empire into an American traitor. These transformative personal matters were not mentioned at all when he wrote about the battle many years later in his biography of Washington. He did acknowledge ever so subtly, however—as a tribute from one fighting man to another—the courage of Captain Fordyce of the British army, who, though badly outnumbered and assailed with fire from two sides, "marched up with great intrepidity, until he fell dead within a few steps of the breast work." Marshall wrote these words when he was chief justice, but he was thinking and feeling as a soldier. In important ways, he never ceased doing so.
What Marshall did at the battle of Great Bridge and in the campaign of burning and pillaging that followed in and around Norfolk, where the militia did not distinguish itself; what he did at Monmouth Court House, Brandywine, and Germantown, the major battles in which he took part, was radical in the extreme. He pledged to defend the rights of the American people and the American nation before either had come into existence. Though he had never fired a shot in anger, he backed his pledge by his willingness to fight and die if necessary. Literally, since it was British custom to hang traitors, he bet his life on the future of the nation and ventured forth with rifle in hand to create one. John Marshall's first great constitutional decision—one that illustrates the linkage between the actual fighting of the Revolution and the constitutional ideas that emerged from it—was to take up arms for America.
Marshall never explained his radical decision to support the Revolution so early on—or why he stuck with the cause when so many imbued with the rage militaire in 1775 soon thereafter lost their rage. Like most of the young men who fought America's wars, his motives for fighting were undoubtedly complex. The simple fact that his father Colonel Thomas Marshall was in the forefront of Virginia's mobilization was reason enough for an adoring son. There was also the matter of personal honor. In a society that celebrated the quality, a member of Virginia's gentry, like young Marshall, fought because not to do so was unmanly. A sense of adventure and empowerment at the prospect of shaping the destiny of country and empire may well have moved a young man who had not yet left the wilderness county in which he was born.
This said, the case is strong that Marshall was moved mainly by principle—though to say so runs the risk of adding to, rather than penetrating, the mist of hagiology that surrounds him. His youthful speech to the Culpeper minutemen about the rights and liberties of America is, not surprisingly, replete with noble sentiment. More to the point was the length of his military service, first in the militia and then, after July 1776, as a lieutenant, then captain in the Eleventh Virginia Regiment of Washington's Continental line. When Marshall praised the "principled soldiers" of the Revolution in his biography of Washington, he spoke from experience. And what he said comports with his statement to Edward Everett nearly half a century after the event, that the American Revolution must be understood as a struggle not against oppression but for constitutional principle. So also must his jurisprudence, which from beginning to end was permeated with the constitutional lessons he traced to Washington's constant struggle to fight a war when thirteen separate states were fighting Congress and themselves. Colonial wars for independence are likely to be constitutional by definition. Lieutenant Marshall was learning on the job while he was fighting.
Still, questions remain as to why he decided to fight in the first place. How, one wonders, did the notion that liberty was worth dying for reach young Marshall in the remote reaches of Virginia's northwest frontier? And what cultural values and ideas did the young soldier blend with his wartime experience to produce the vision of the republican nation for which he ended up fighting? Though the details about it are scanty, the answers in part lie in Marshall's education. Using Bernard Bailyn's broad cultural measure, it appears to have been less haphazard than was once thought. True, Fauquier County had little to offer by way of schools. In fact, there were none at all until 1777. Marshall's parents, however, were unusually committed to education, each in his or her own way. There is distressingly little in Marshall's writings about his mother, Mary Keith Marshall, and we can only infer her influence on him. Married at the age of seventeen, she had her hands full giving birth to fifteen children and attending to basic matters of caring for them. And matters were indeed basic. Germantown was hardly more than a frontier post when the Marshalls first settled there, and the place Marshall was born and spent his first years was a simple frontier cabin. Frontier fare was the order of the day, as Marshall recalled, and sometimes there wasn't much of that either. Things improved when the family moved from Germantown to Leeds Manor in the early 1760s, but Mary had her hands full. There is good reason to assume that as the daughter of a minister she appreciated literacy and learning. It is possible she shared responsibility with her husband in seeing that her young brood acquired the basic skills of reading and writing. Her most lasting impression on their eldest son, however, had to do not with book learning but with courage and character. Marshall seems not to have escaped the assumption of his place and age, that a republican woman's place was in the home. More than most, however, he acknowledged the intellectual equality of women and argued for improving their educational opportunities. Writing many years later in regard to James Mercer Garnett's Seven Lectures on Female Education, he concluded "that national character, as well as happiness, depends more on the female part of society than is generally imagined." Reading history backward, it is hard not to conclude he learned that lesson first from his mother.
Marshall's brief formal education began at the age of fourteen, when his father sent him to Campbelltown Academy in Westmoreland County. Though billed as an academy, it was only a small boarding school run by the Reverend Campbell, an Anglican clergyman trained in Scotland who had some proficiency in the classics and a penchant for stern discipline. After a year Marshall returned home having acquired some new friends (including James Monroe), further proficiency in the basic skills, and an introduction to Latin. It was at this point his father procured the live-in tutorial services of James Thomson, a thirty-year-old Anglican priest-in-training. Thomson came from Scotland to assume duties in the newly organized Episcopal church for the parish of Leeds, which was coterminous with Fauquier County. As a leading member of the Leeds vestry, Thomas Marshall had been instrumental in choosing Thomson for the church position. It would appear Marshall may well have had his son's education in mind when he did so. Family tradition has it that he wrote directly to a friend in Edinburgh requesting a man who "must be a gentleman, a college graduate, especially well versed as a Greek and Latin scholar, and an Episcopalian." During his first year in Fauquier, Thomson resided in the Marshall home and tutored the Marshall children. During this period, John gained a solid mastery of Latin grammar, along with a lasting affection for Livy, Horace, and Cicero. Thereafter, with only a grammar and dictionary and "his own unassisted diligence," he went on to master the classics on his own.
This brief period of study with the Reverends Campbell and Thomson, along with a brief stint at the College of William and Mary during a lull in the war, was the extent of Marshall's formal education. What else he learned—and it was most of what he learned was on his own, with guidance from a doting father who had ambitious plans for his eldest son—first as a Virginia gentleman of standing in British North America and then as a Virginia gentleman of standing in the new American nation. Thomas Marshall was a man of no mean ambition himself and imparted that singular trait to his eldest son. Such influence was not unusual in the patriarchal social order of late eighteenth-century Virginia. In the Marshall family, however, the well-drawn lines of patriarchal authority were supplemented, if not supplanted, by affection and respect. Joseph Story, Marshall's friend and colleague on the Supreme Court, was touched by the way Marshall constantly spoke of his father "in terms of the deepest affection and reverence" and how, in the privacy of their friendship, the chief justice often "broke out with a spontaneous eloquence" and "in a spirit of the most persuasive confidence" concerning his father's "virtues and talents." In his Autobiographical Sketch, Marshall proudly confessed that his father was "a far abler man than any of his sons" and "the solid foundation of all my own success."
Part of that foundation was practical (for example, his surveying and mathematical skills), part character (his patriotism, his personal strength, and the courage and decisiveness under fire he displayed as commander of the Third Virginia Regiment at the Battle of Brandywine). A substantial part of Thomas's legacy to his son, however, had to do with book learning, not a familiar commodity even among well-to-do Virginians, especially those in the frontier counties. Thomas Marshall may have cherished education because he had so little of it himself. Possibly he was influenced by his neighbor, Thomas, Lord Fairfax, who brought the best of English culture to the Virginia frontier, and by his neighbor and friend George Washington, who in turn emulated Lord Fairfax. With such models in mind, the father set out to educate his eldest son to rise in the social hierarchy of late colonial Virginia, which is to say John Marshall's education was markedly English. He never alluded to the theological aspects of this education if such there were. Neither was he given to biblical quotations. But his father was a deacon in the Anglican church, and his mother was the daughter of an Anglican minister. This, plus the fact that both of his tutors were Anglican divines, makes it all but certain that the Bible and the prayer book were regular fare. English literature, poetry, and history certainly were. Milton, Shakespeare, Dryden, and Pope were among his favorites. The latter's Essay on Man left a special mark in part because, as Marshall remembered, he was required at the impressionable age of twelve to copy large portions of it. Oliver Goldsmith and George Crabbe were also favorites of his then and later. Story remembered Marshall's fondness for poetry, and in fact Marshall tried his hand at it, though somewhat late in life. In a different vein entirely, and much more influential in giving direction to Marshall's life, was his early encounter with William Blackstone's Commentaries on the Laws of England in four volumes. It speaks loudly as to Thomas Marshall's ambition for his son that he was one of the first subscribers to the 1772 American edition. At Thomas Marshall's urging his son took a plunge into the Commentaries before going off to a war that aimed to unseat the authority of the British constitution the great Tory jurist praised as the best and fairest in the world.
Reading English literature and poetry was a lifelong pleasure, and the Latin classics were a solace that helped John Marshall weather the early death of four children and the devastating loss of his wife. Reading also served as a relief from the pressures of work and the tedium of living in the culture-starved wilds of Washington City. In a more practical vein, Marshall's distinct style of writing was also traceable in part to his passion for English literature. Especially influential, as Marshall's most distinguished biographer explains, was Alexander Pope, whose crisp, precise writing was a model for Marshall. Horace and Livy also left an appreciable mark, as did Blackstone, who taught generations of lawyers who had suffered through Coke on Littleton that clarity, eloquence, and legal learning were not mutually exclusive. Marshall's lifelong respect for the written text, for the meaning of language, was also clearly traceable to the influence of the Commentaries. And so, most probably, was his conviction that the tens of thousands of judicial decisions over the centuries added up to a coherent system of jurisprudence.
What else Blackstone and the great literature of England and republican Rome meant to a young frontiersman whose experience was bounded by forest, stream, and mountains is hard to say. The beauty of northwest Virginia could itself be an education, and we hear from Story, who heard it from Marshall, that nature left an indelible impression. The glory of the Blue Ridge Mountains probably inspired Marshall to poetize as much as did Goldsmith and Dryden. As a young man he learned what Emerson and Thoreau later preached: that inner feelings and outward nature and books could define truth and inspire the creative imagination. And as Lincoln later did, he came to cherish what he had little of. The isolation of the frontier—the scarcity of books, leisure, and learning there—rather than depriving Marshall of an education, deepened his appreciation of it. The northwest frontier also left another more practical mark: the desire to own a large piece of it. Following his father, John Marshall spent his mature life consolidating extensive land holdings in and about the Northern Neck and on into the valley of Virginia—for his own peace of mind and for the security of his growing family.
Frontier-inspired book learning, important as it was, affords few clues to the main question posed earlier regarding the source of Marshall's revolutionary "principles" and his decision to fight for them. Indeed there is more than a little irony in the fact that Marshall was educated in the literature of the nation whose authority he rebelled against. The paradox might be resolved if we knew for sure what young Marshall actually learned from Blackstone, or whether he prepared himself for war by studying the radical Whig tracts of James Burgh, Joseph E. Priestley, and Cato's Letters, by John Trenchard and Thomas Gordon—the staples of the revolutionary intelligentsia—or the writings of John Locke concerning the right of revolution. He did mention in his Autobiographical Sketch that on the eve of war he was more devoted to "the political essays of the day, than to the classics or to Blackstone." Possibly the knowledge of Cicero, Tacitus, Livy, and Horace imparted by the Reverends Campbell and Thomson informed his notions of republican liberty. If so, he makes no reference to them in this regard. The books he did mention and admire, moreover, were either nonpolitical or decidedly unrevolutionary. The rational, orderly, and moral world of Pope seems light years removed from the fratricidal realities of a bloody revolutionary war. Shakespeare understood blood well enough and described those human foibles that led to the shedding of so much of it. But Lieutenant Marshall assuredly did not rally under the Bard's banner at the Culpeper muster. Of all Marshall's reading, it was perhaps the conservative Blackstone who was most relevant to the revolutionary soldier. True, the staunch Tory lawyer sang the praises of a sovereign Parliament, whose authority Marshall fought to repudiate. But Blackstone praised even more the rights of property, which he conflated with liberty—the same Americans felt was being denied them by corrupt and misguided English politicians. To understand Marshall, we need to contemplate the possibility that conservatives could be revolutionaries—and possibly, even, were revolutionaries because they were conservatives.
In searching for the educational roots of Marshall's revolutionary behavior, there is one other point to consider: namely, that by studying to become one of God's Englishmen, he and other American patriots-in-the-making were learning to think of themselves as deserving of fair and equal treatment. When they were treated instead as inferior colonials, they branded the English as radicals for having repudiated their own constitution. By this line of reasoning, Marshall could become a revolutionary dedicated to the establishment in America of the values of liberty under law the British had taught him, but which they forgot. By the same token, if England should return to her senses, Marshall might feel free to reaffirm the taught tradition of English culture. This is precisely what happened in the 1790s when Americans grappled with the dangers of the French Revolution abroad and social radicalism at home. Marshall's comparison of good and bad revolutions—the American and the French—led him to embrace English conservatism and work it into the fabric of American politics and law.
Excerpted from John Marshall and the Heroic Age of the Supreme Court by R. Kent Newmyer. Copyright © 2001 by Louisiana State University Press. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
|CHAPTER ONE Young Man of the Revolution||1|
|CHAPTER TWO Judicial Statesman in the Making: Law and|
|Politics in the 1790s||69|
|CHAPTER THREE Marshall, Jefferson, and the Rise of the|
|CHAPTER FOUR Republican Judge as Lockean Liberal||210|
|CHAPTER FIVE Constitutional Law for a New Nation||267|
|CHAPTER SIX Embattled Chief||322|
|CHAPTER SEVEN Conservative Nationalist in the Age of Jackson||386|
|EPILOGUE A Judge for All Seasons||459|
|Essay on the Sources||487|
|List of Cases||509|