John Marshall

by Harlow Giles Unger

  “Tyranny!”

  The young man charged that when Patrick Henry was governor, he had ordered the summary execution of a man—without a trial!

  The audience buzzed with surprise.

  “What has become of the worthy member’s maxims?” the young man demanded in tones as eloquent as those of Henry himself.

  He has expounded on the necessity of due attention to certain maxims—from which a free people ought never to depart. . . . A strict observance of justice and public faith, and a steady adherence to virtue. . . . Would to heaven that these principles had been observed under his government!3

  Pointing an accusing finger at Henry, the young man called up the name of Josiah Philips, a Tory laborer accused of “arson and murder” in southeastern Virginia in 1777. Then-Governor Henry had told the General Assembly to issue “a bill of attainder” that would convict Philips “of high treason and suffer the pains of death . . . without the usual forms and procedures of the courts of law.”4

  Little wonder, the young man sneered, that Patrick Henry opposed a constitution that specifically outlawed bills of attainder.

  Henry paled under the barrage of accusations and revelations.

  Can we pretend to the enjoyment of political freedom when we are told that a man has been, by an act of assembly, struck out of existence, without a trial by jury—without examination—without being confronted with his accusers and witnesses—without the benefits of the law of the land? What has become of the worthy member’s maxims?

  “We, Sir, idolize democracy!” the young man scolded Henry. “The supporters of the Constitution claim the title of being firm friends of liberty and the rights of mankind! I differ in opinion from the worthy gentleman. I think the virtue and talents of the members of the general government will tend to the security, instead of the destruction of our liberty.”5

  Stunned by the attack on their beloved Henry, delegates began rethinking their opposition to central government. In the course of the next ten days John Marshall—for that was the young man’s name—joined with James Madison and other constitutionalists in coaxing a majority of delegates to vote for ratification of the Constitution and creation of a new nation: the United States of America.

  Although Marshall left the convention intending to return to private life and practice law, he “found the hostility to the [federal] government so strong . . . as to require from its friends all the support they could give it.”6

  The lifelong conflict that ensued between Marshall and the enemies of the federal government—among them his cousin Thomas Jefferson—would eventually provoke the US Civil War. Ironically, almost all the heroes and villains in the conflict were—like John Marshall himself—patriots who believed they were acting in the best interests of the nation and its people.

  LIKE PATRICK HENRY, JOHN MARSHALL EMERGED ON THE NATIONAL political stage from the obscurity of a log cabin on the edge of Virginia’s wilderness. Born forty miles southwest of Alexandria in Fauquier County on September 24, 1755, he was the first of fifteen children of Thomas and Mary Marshall. His father could claim only the most undistinguished Welsh lineage that vanished into history before one of them emerged from the forest near the Potomac River and carved a modest 200-acre farm from the woods of Westmoreland County—near Wakefield and George Washington’s birthplace.

  As a boy, farmer Marshall’s son Thomas and the young Washington became steadfast friends. Thomas Marshall went to a formal school for a about year, before Washington—by then a skilled surveyor—asked Marshall to join him on a surveying expedition into the wilderness sponsored by Britain’s Lord Fairfax. Fairfax had ordered all his lands surveyed—some 5 million acres, stretching over Virginia’s Northern Neck (see map, page 43), a thick finger of land between the Potomac and Rappahannock Rivers, whose geological roots stretched from the eastern slopes of the Blue Ridge Mountains to Chesapeake Bay.

  The earliest known portrait of John Marshall shows him having retained many features of his youth—even at forty-three. A hero in the American Revolutionary War, he served in the front lines at the battles of Brandywine and Monmouth and survived the bitter winter at Valley Forge. (FROM THE LIFE OF JOHN MARSHALL, BY ALBERT J. BEVERIDGE, VOL. I: FRONTISPIECE)

  Before he returned from his epic journey Marshall had learned one of the most lucrative crafts in America: surveying. His new skill earned him a position as agent for Lord Fairfax and would eventually allow him to acquire more than 200,000 acres of prime Virginia and Kentucky lands of his own and provide his family with untold wealth for generations.

  When his first son John was born, Thomas Marshall leased about three hundred acres at the foot of the Blue Ridge Mountains in a small valley called “The Hollow,” where he built a two-room cabin and farmed enough land to feed his family. Typical of settler homes in Virginia’s wilderness, the Marshall house had two rooms on the ground floor—one of them a “great” room with the hearth for cooking and heating, the other a master bedroom for Thomas, his wife, and, as often as not, a newborn. Older children slept in the half-story loft above, clustered about the chimney for warmth.

  John Marshall’s childhood home at “The Hollow” in Virginia’s Blue Ridge Mountains. About thirty feet long, its two rooms downstairs were an all-purpose “great room,” with a stone hearth for cooking, and a master bedroom for the Marshall parents and an infant. Older children slept upstairs in one of the two rooms of the half-story loft. (FROM THE LIFE OF JOHN MARSHALL, BY ALBERT J. BEVERIDGE, VOL. I:30)

  Though largely self-taught, Thomas Marshall was well educated for a frontiersman, and his status as agent for Lord Fairfax gave him enough influence to win election to the House of Burgesses, then county sheriff, and finally, chief vestryman. With no school nearby, Thomas Marshall and his wife took charge of their children’s education themselves.

  “My father,” John Marshall explained, “possessed scarcely any fortune, and had received a very limited education, but was a man to whom nature had been bountiful and had assiduously improved her gifts. He superintended my education and gave me an early taste for history and for poetry.”7

  John Marshall’s mother, Mary, claimed a more illustrious lineage than did her husband. Descended from Henry Randolph, one of Virginia’s earliest English settlers, her extended family included Peyton Randolph, who became first President of the Continental Congress; Edmund Randolph, who became a governor of Virginia and first attorney general of the United States; and Thomas Jefferson. Although John Marshall and Thomas Jefferson would become bitter political foes, they were nonetheless second cousins.

  Like Marshall’s father, Jefferson’s father, Peter, had been a farmer from a family of little consequence until he learned surveying and staked out lands in the Virginia wilderness that gained enormous value by the time his son Thomas was born. As a youngster, Thomas Jefferson was no scholar, but the loss of his father in 1757 when the boy turned fourteen changed him dramatically. Tom and his younger brother inherited an estate of 7,500 acres, more than sixty slaves, twenty-five horses, seventy head of cattle, and two hundred hogs. Tom became an insatiable reader, went on to attend College of William and Mary, and studied law under the brilliant Virginia attorney George Wythe, a signer of the Declaration of Independence who would later train John Marshall.

  When John Marshall turned fourteen, his father sent him to a proper school.

  “There being no grammar school in the part of the country in which my father resided,” John Marshall explained, “I was sent about one hundred miles from home to be placed under the tuition of Reverend Archibald Campbell, a clergyman of great respectability.” Although brutal itinerant teachers ran many rural schools, Marshall’s teacher was a gentle, superbly learned Scotsman who taught history, Latin, French, higher mathematics, and the Scriptures. Among his other students was James Monroe, then a precocious eleven-year-old who lived on his father’s small farm five miles from school. He immediately befriended Marshall.

  “Twenty-five students only were admitted i
nto Campbell’s academy,” Monroe recalled years later, “but so high was its character that youths were sent to it from the more distant parts of the then-colony.”8 Despite a three-year age difference, Marshall and Monroe formed what grew into a close, lifelong friendship. Marshall often accompanied Monroe home after school to spend the night—each carrying “books under one arm and a musket slung over his shoulder,” shooting small game along the way to put extra meat on the Monroe family dinner table.9

  Marshall studied at Campbell’s school for a year, then returned home, where a new pastor at the Marshall family church—another Scotsman—tutored the family’s children in exchange for room and board, a common practice in early America.

  “He remained in the family one year,” Marshall reminisced, “at the expiration of which I had commenced reading Horace and Livy. I continued my studies with no other aid than my dictionary. My father superintended the English part of my education, and to his care I am indebted for anything valuable which I may have acquired in my youth. He was my only intelligent companion and was both a watchful parent and affectionate instructive friend.”10

  When John Marshall turned eighteen, his father had amassed enough wealth to buy a 1,700-acre farm at Oak Hill, an elevation a few miles east of “The Hollow,” where he built what, for the frontier, was a lavish home. A two-story structure, thirty-by-thirty-three feet, it housed seven rooms, four downstairs and three above, with one of the upstairs rooms a fifteen-by-twenty-foot expanse—large enough to serve as a classroom for the huge flock of Marshall children.*

  By then John Marshall was flirting with manhood, and his father gave him an appropriate—and important—set of books: Sir William Blackstone’s Commentaries on the Laws of England.11 A four-volume masterpiece on “the rights of persons and things, of private and public wrongs,” it was the most influential eighteenth-century study of British laws, and Thomas Marshall had obtained it both for his own use as a community leader and for his son, whom he hoped might enter the law. It proved a turning point for the boy, who realized, “I was destined for the bar.”12

  The warmth and affection that his father lavished on his son the boy eagerly passed on to his younger brothers and sisters—just a few at first, then, six, eight, ten, and, finally, fourteen: Eliza, the oldest girl, born in 1756, a year after John; Mary, the following year; Thomas in 1761; James Markham, in 1764; Lucy, 1768; Alexander Keith in 1770; Louis in 1773—and on and on. Isolated as they were, they necessarily turned to their big brother as mentor, schoolmaster, forest guide, trusted friend, and mediator, and he joyfully embraced each of those roles.

  The Marshalls had not settled at Oak Hill very long when Boston’s notorious “Tea Party” sparked riots and disorders along the East Coast—in New York, Philadelphia, Charleston, and elsewhere. Parliament responded by shutting Boston down with martial law.

  “The controversy between Great Britain and her colonies,” Marshall recalled, “assumed so serious an aspect as almost to monopolize the attention of young and old. I engaged in it with all the zeal and enthusiasm which belonged to my age and devoted more time to studying military exercises and political essays than the classics.”13

  In February 1775 British troops tightened their stranglehold on Boston, and Patrick Henry called Virginia and the rest of the nation to arms with his legendary appeal to Virginia’s House of Delegates:

  Our brethren are already in the field! Why stand we here idle? . . .

  I know not what course others may take, but as for me, give me liberty, or give me death.14

  Henry’s call inspired Thomas Marshall to enlist as a major in the militia of neighboring Culpeper County, whose troops marched under pennants that pictured a coiled rattlesnake hissing, “Don’t tread on me.” Refusing to remain behind, eighteen-year-old John Marshall enlisted as an ordinary soldier and chased after his father on the road to war.

  On April 19, 1775, open warfare broke out in Massachusetts when British troops marched from Boston to Lexington to arrest rebel leaders John Hancock and Samuel Adams. After a brief encounter that left eight American defenders dead and ten wounded on Lexington Green, the British continued to nearby Concord to seize rebel gunpowder stores.

  By evening the next day 4,000 farmers—so-called Minutemen—had flocked in from the surrounding country. After positioning themselves behind stone walls that lined the road, they set off a steady rain of musket fire that sent British troops racing back toward Boston in panic. By the end of the day, nearly 150 British troops lay dead or wounded, while the farmers suffered 49 dead and 42 wounded.

  On April 23 the Massachusetts Provincial Congress voted to raise an army to fight the British, and within a month Rhode Island, Connecticut, and New Hampshire agreed to send 9,500 men to join the 4,000 Massachusetts Minutemen laying siege to British-held Boston. In June Massachusetts delegate John Adams proposed to the Continental Congress in Philadelphia that it adopt Patriot forces surrounding Boston as a Continental Army. In a stroke of genius to wed North and South, he moved to name Virginia’s Colonel George Washington commander-in-chief of the largely northern forces, and the states agreed to unite in the fight against British rule.

  In Virginia, Royal Governor Lord Dunmore fled the capital of Williamsburg and boarded a warship off Norfolk to direct a campaign of terror against Virginia’s civilian population. Squadrons of British marines staged hit-and-run raids on coastal towns and plantations, plundering supplies and carrying off slaves with promises of freedom if they fought for Britain.

  Major Thomas Marshall led 500 Culpeper Minutemen, including his son John, in a joint attack on Norfolk with 900 Virginia regulars. “In a few days,” his son recounted, “we were ordered to march into the lower country for the purpose of defending it against a small regular and predatory force commanded by Lord Dunmore.”15

  As Thomas Marshall’s battalion reached the “Great Bridge” outside Norfolk, he dispatched a trusted slave to Dunmore’s Norfolk headquarters. Disguised as a runaway, Marshall’s slave convinced Dunmore that Patriot troop strength was far less than it actually was. Confident of having superior numbers, Dunmore sent only 200 regulars and 300 blacks and Tory volunteers to attack the Virginians.

  The slaughter that followed left half the badly outnumbered British attackers and their commanding officer dead, without a single American casualty. Although Dunmore and his surviving troops managed to row to safety on the British frigates in the river, the encounter left him so outraged that he ordered his ships to fire on the Norfolk waterfront, and on January 1, 1776, he sent marines ashore to set the town ablaze.

  “I was in the action at the Great Bridge and in Norfolk when it was set on fire by a detachment from the British ships,” John Marshall related. Cannon blasts shook the earth, he said, as mobs of British marines surged through town, flinging torches through every ground-floor window, sparing only the homes of self-proclaimed Tories. When nightfall silenced the cannons and the British marines returned to their ships, 6,000 survivors huddled about campfires in nearby forests, all of them left homeless in the dead of winter.

  Infuriated by the British atrocity, Culpeper Minutemen returned to town to burn the remaining Tory houses. As Dunmore’s ships pulled away, villagers in other towns along Virginia’s shoreline trembled in fear as they awaited the same fate.

  In March 1776 the British army evacuated Boston, ceding the city and the rest of New England to the Americans, and Massachusetts declared independence from Britain. On June 29 Virginia followed suit, and five days later the Continental Congress approved a Declaration of Independence written largely by Thomas Jefferson, who borrowed concepts and phrases from the seventeenth-century British philosopher John Locke.16

  On July 4, 1776, President of Congress John Hancock appended his bold signature to the document in Philadelphia. By then Patrick Henry had taken an oath as first governor of the free and independent Commonwealth of Virginia and, as one of his first acts, he merged county militias into a single Army of Virginia. What had been the C
ulpeper Militia dispersed into nameless regiments, and John and Thomas Marshall marched northward in separate regiments to support General Washington’s Continental Army—the father now a colonel, the son a junior officer. Both joined thousands of other Americans of every age from every state in what would be the fiercest and bloodiest battles of the war.

  “In July 1776, I was appointed first lieutenant in the 11th Virginia Regiment” Marshall explained. “I had grown up at a time when a love of union and resistance to Great Britain were identical. I carried these sentiments into the army where I found myself with brave men from different states who were risking life and everything valuable in a common cause . . . and where I was confirmed in the habit of considering America my country and Congress as my government.”17

  With Boston and much of eastern New England in Patriot hands, Washington moved his army from Boston to seize control of New York and its deep-water harbor and direct access to the Atlantic. British General William Howe, however, had the same idea, and Howe transported the 10,000 British troops evacuated from Boston to Staten Island, where they landed unopposed. Ten days later 150 British transports sailed into New York Bay with 20,000 more troops, including 9,000 Hessian mercenaries. The huge expeditionary force stormed ashore in Brooklyn, overrunning 5,000 American defenders, killing 1,500 and capturing the American army’s entire meat supply. Only a thick fog allowed survivors to escape after dark across the East River to New York Island (Manhattan) on August 29, but the British did not delay their pursuit. Washington ordered his men to retreat northward toward the Westchester County mainland, hoping to meet up with Thomas Marshall’s Virginians, then approaching New York.

  Before the Virginia reinforcements arrived, however, the British out-flanked the Americans and all-but-surrounded Washington’s force in Harlem Heights. Sensing the danger to his commander-in-chief, twenty-two-year-old Lieutenant Colonel Aaron Burr ordered his New Yorkers to attack one of the British flanks. Burr was the grandson of the revered American churchman Jonathan Edwards. He had lost both his parents and all four grandparents when he was only two and went to live with an aunt and uncle in a clan of about twenty children, including his older sister. A brilliant scholar at thirteen, he enrolled at the College of New Jersey, which his father had helped found at Princeton. After graduating at sixteen, he enlisted and served courageously in the Battle of Long Island.