John Marshall

Allan B. Magruder (author)

John T. Morse, Jr. (editor of 1898 edition)

Kevin C. Walsh (editor of 2017 edition)

(c) 2017, Kevin C. Walsh

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Introduction to 2017 Edition

John Marshall ranks in the all-time top three of American nation builders.

George Washington is number one. He was “first in war, first in peace, and first in the hearts of his countrymen.” [1]

Abraham Lincoln is number two. The American people North and South fought our nation’s worst war over many things. But they fought above all over the nature of the Union. And Lincoln’s vision prevailed.

John Marshall is number three. He delivered the Union intact from Washington to Lincoln. Throughout his long and varied public life, including preeminently as Chief Justice of the United States, John Marshall defined the Nation during the early Republic. He supplied the constitutional architecture for numerous nation-builders who constructed the country between Washington and Lincoln.

The Constitution of the United States originated a new government for the Union born out of our common independence and dependence. The greatest constitutional controversy from the early Republic through Reconstruction was over the nature of our Union. Was this new Government a creation of the States, or of the People? Was it to operate through the States, or directly on the People themselves? Was the Government responsible for the welfare of the States or of the People?

On all these points, Lincoln learned his lessons from Marshall. “The Goverment of the Union,” Marshall wrote in 1819, “is emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” [2] When South Carolina threatened disunion in 1830, Webster waved this standard in his Second Reply to Hayne: “It is, Sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people.” [3] And since President Lincoln spoke those words in 1863, the United States has lived out—imperfectly at best and always only for a time—the two great resolutions of Lincoln’s Gettysburg Address: “that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, and for the people shall not perish from this earth.” [4]

As John Marshall neared the end of his long life (b. 24 Sept. 1755, d. 6 July 1835), he was tempted to despondency about the future of the Union. “The union has been prolonged thus far by miracles,” he wrote to his friend and colleague Joseph Story in September 1832. “I {fear} they cannot continue.” [5]

There were good reasons to fear. Andrew Jackson was President, a man far distant in character, judgment, and temperament from Marshall’s exemplar of American statesmanship, George Washington. Congress had recently passed another tariff Act that, together with Jackson’s re-election, would lead to adoption of a nullification ordinance in South Carolina.

Although bent, the Union did not then break. When civil war did come a generation later, though, the earthquake occurred on the same fault line. Americans North and South fundamentally disagreed about the nature of our Union.

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A great man, like a gem, can appear differently to different eyes, especially when examined in different lighting conditions and from different angles. The primary purpose of re-publishing this book is to re-present John Marshall as a hidden hero of American self-government. Out of the abundance of public-domain materials about Marshall, I chose this volume as a starter project for this Marshall re-presentation project because of its outlook and its timing.

This relatively short biography is a well-written, non-technical “starter” book on John Marshall that focuses particularly on his life and career before he became Chief Justice of the United States in 1801. Marshall’s experiences up to that point formed the political and legal commitments that he took with him as Chief Justice for the next three-and-half decades of this Nation’s life.

Houghton & Mifflin published the edition of this book used here in 1898 as part of its “American Statesmen” series. This choice for that series signifies something of the biographical outlook of the author, Allan Bowie Magruder. He depicts Marshall as a statesman. Magruder wrote this book to re-present certain “almost forgotten features of {Marshall’s} active, busy life, in addition to sketching his more familiar career on the bench.” That illustrious judicial career, Magruder notes, was itself so constructive as to loom over the other aspects of his personal and public life: “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.”

As Marshall’s extensive biography of George Washington reveals, Marshall believed in greatness, statesmanship, and the power of human resolution. Studying Marshall as a statesman today, we can pick up some of the same lessons he learned from his study of Washington.

This book’s appearance at the end of the nineteenth century places it near the end of the first phase of research and writing about Marshall’s life after his death. That phase began with now-classic discourses and eulogies in the months and years immediately after Marshall’s death. It continued with the publication in 1881 of the second volume of Henry Flanders’s Lives of the Chief Justices, the volume containing his life of Marshall. This phase peaked in 1901, with the writing and delivery of hundreds of orations across the country celebrating John Marshall Day on February 4, 1901.

The second phase of research and writing about Marshall can be said to have commenced in 1916 with the publication of the first volume of Albert J. Beveridge’s four-volume Life of John Marshall. In the opening paragraph of his Preface, Beveridge asserts that “so little has been written of {Marshall’s} personal life, and such exalted, if vague, encomium has been paid him that, even to the legal profession, he has become a kind of mythical being, endowed with virtues and wisdom not of this earth.” Beveridge was unduly dismissive of what had come before him, and the biography he wrote contains some myths of its own. But Beveridge had a point. Until his four volumes, there had been no fully researched biography of John Marshall.

This second, research-based phase—in contrast with the first, story-based phase—reached an end of sorts in 2006. That was the year of publication for the twelfth and final volume of The Papers of John Marshall. Those volumes contain the fullest, most rigorously researched collection of John Marshall’s papers, including correspondence to and from, his law commonplace book, and an account book, among other items, in addition to his legal and judicial papers.

The beginning of the third phase overlapped with the last decade or so of the second phase, as biographers and other scholars began to make use of The Papers of John Marshall. We are still in this third phase, perhaps even still just in its beginning years, as more information and analysis becomes more easily and cheaply available to would-be students of Marshall.

This republication is a fitting continuation of this third phase. It contains a mixture of eulogy and history, but has not been materially falsified by later research and writing. It should not be relied upon as a stand-alone source, but rather as a stimulus for further study of the Great Chief Justice.

Kevin C. Walsh

Midlothian, Virginia

November 2017

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Editor’s Preface

One of the most important characters in the earlier history of the United States was John Marshall. Yet how few persons have any genuine appreciation of this fact, or know much of him. Most readers, even of those who fancy themselves fairly familiar with our national history, mention his name with an odd mingling of respect for his supposed greatness and ignorance of the facts on which their respect is based. It is natural enough that this should be so, for judicial achievements have scant elements of popularity. Yet in the ripeness of time there will surely arise some student more ambitious of doing a useful work than of writing a book which shall attract many readers, and he will devote his laborious days to discussing the topic of the influence of the Supreme Court in the history of the United States. It is a subject of grand possibilities. Then at last the greatness of Marshall’s services will adequately appear, and it will be seen that he has left the imprint of his views as strongly impressed upon our governmental system as did Hamilton or Jefferson.

This task has been undertaken in this present volume so far as is compatible with making a book which should have attraction for the general reader. It was certainly a somewhat difficult thing to do, but I believe that anyone interested in the American political system will find in these pages much that will be new and valuable. It will appear to him that while Hamilton and the Federalists devised schemes and policies, with the avowed purpose of carrying the Constitution into effect, and Jefferson and the Democracy denounced them as contrary to and subversive of the Constitution, John Marshall, as chief justice of the Supreme Court, and overshadowing and controlling his associates by reason of his transcendent ability as a jurist, sat as the final arbiter between the great contending parties. His intellectual sympathies were with the Federalists, and he gave the seal of legal approval to their theory of government. He might have undone much of Hamilton’s work, but fortunately he preferred to give to it the permanence and stability which could come only from the tribunal which he practically controlled as well as presided over. I say fortunately, because I fancy that the experience of later generations has resulted in an almost universal agreement that the Federalists did not make a government any more strong or any more centralized than the country has needed. This may be admitted without on the other hand denying that it would not have been desirable that this party should have remained longer in power, and without questioning that Jeffersonian doctrines came in good season to aid the wholesome development of our political life. It may be an interesting matter of speculation as to what would have been the result if Marshall had held Jeffersonian views, if, among other things, he had declared Hamilton’s financial policy to be unconstitutional. In that case, what would have become of the great doctrine of protection? What possibility of national solvency would have survived such a decision?

In point of fact, Marshall is one of the founders of the country, and in due time this truth will be more widely recognized than it is now. As a jurist of original power he stands among the most noted men of the United States and of England; and if it seems as though a special Providence had given us in Washington a military leader of unusual qualities precisely fitted to the peculiar needs of an exceptional crisis, it seems also like another manifestation of the same power that, when a novel system of government was to be set in working order, the Chief Justice of the United States was found to be a man whose capacity for creating constitutional law was unsurpassed if not unequaled in the history of the bench.

I ought to add that Colonel Magruder, who wrote this book, and who is no longer alive to revise it, was a Virginian and enjoyed ample opportunities to obtain any unpublished and traditional information which existed in that State concerning Marshall. I have not ventured to make any alterations in his volume, but have left it as it was originally published. Indeed there has not been, I think, any substantial addition to the material which existed at the time when the well-known Life of Marshall, in Flanders’s Lives of the Chief Justices, was written. Of this book Colonel Magruder necessarily made free use, as must all coming writers concerning Marshall. Little is known now which was not known then, and probably little more will ever be known ; but much will yet be written about Marshall before the scope and immense value of his services to the nation will meet with the full popular recognition which it merits.

John T. Morse, Jr.

August, 1898. [6]

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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. [7]

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NEXT — Chapter I: Youth