Without Precedent
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Washington and Steuben gave Marshall an early lesson in two styles of leadership: Washington demanded unquestioning deference to authority while Steuben fostered collegiality. These two heroes came to represent the twin attributes of Marshall’s professional success: Marshall’s influence as a statesman and jurist derived from his ability to command respect for the authority of the law and his talent for finding common ground.
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GIVEN THE IMMENSITY of the challenge of turning these untrained men into an effective fighting force, one might wonder why on earth Steuben did not return to the Prussian army. The truth was he couldn’t. Lieutenant General Baron Friedrich Wilhelm Ludolf Gerhard Augustin von Steuben was neither a general nor a Prussian baron. Though his maternal grandfather may have been a German noble, Steuben possessed neither a title nor a fortune. He never rose above the rank of captain in the army of Frederick the Great. His military career in the Prussian military was aborted in his early thirties when it was rumored that he preferred young boys.34 After his discharge from the Prussian army, Steuben could not find work and eventually ended up in Paris, where he met the French playwright Pierre Augustin Caron de Beaumarchais, who was engaged in selling arms to the Americans. Beaumarchais introduced the Prussian to two American commissioners, Silas Deane and Benjamin Franklin, to see if they could offer him a military commission. They were impressed with him, but Congress had already complained that they were commissioning too many foreign officers, which enflamed jealousy within the ranks of American officers. Deane and Franklin thought that all they could offer was to send Steuben to America without pay or rank. To make Steuben more salable to Congress, Deane and Franklin concocted an over-the-top twenty-year record of military service in combat as a lieutenant general, an aide-de-camp, and a quarter master general to Frederick the Great.35
With his fictionalized curriculum vitae, Steuben was received by Americans as if he were a world-famous warrior. In Boston, John Hancock, the former president of the Continental Congress, gave a huge party in his honor for the leading citizens of the city. The Continental Congress set aside its collective suspicions of foreign mercenaries to welcome him warmly to York. Congress offered him a commission as a captain and agreed to pay him six hundred pounds annually for life if the revolution succeeded.36
Steuben thought he had pulled off a great subterfuge until he arrived in Valley Forge and realized that Washington’s army was a far more extravagant deception: He was the one who had been fooled. But Steuben did not return to Europe. He and Azor had no place to return to. Instead, Steuben decided to make the best of a bad situation. He knew that reality often follows appearances. Marshall, too, learned that lesson early.
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VALLEY FORGE LEFT an indelible mark on Marshall and laid the foundation of his political and legal career. He developed personal ties to Washington, Steuben, the Marquis de Lafayette, and Alexander Hamilton, among others, that served him well later in life. And the hardships at Valley Forge shaped his views about government. The Continental Congress and the thirteen state governments proved incapable of providing adequate support to the army. The near collapse of the army convinced Marshall that the Articles of Confederation were unworkable. Only a strong central government with the power to tax, regulate commerce, and raise an army could defend the nation effectively, he concluded.
Marshall was born on September 24, 1755, in Germantown, Virginia, in what was then the western frontier and is now Fauquier County—about sixty miles southwest of Washington, D.C. He was the eldest of fifteen—seven boys and eight girls. For the first decade of his life, the family lived in a rough-hewn two-room log cabin. They wore homespun—a coarse handwoven fabric—farmed their rocky soil, and survived primarily on cornmeal mush.37 When Marshall was nearly ten, the family moved farther west to a valley known as the Hollow, now called Markham, in the shadow of the Blue Ridge Mountains. This is where he lived until age eighteen. He and his family shared a wood-framed two-room cabin measuring barely four hundred square feet with a half-story loft. There were few neighbors, and the nearest towns, Warrenton and Winchester, were more than twenty miles away, roughly a day’s trip on horseback. At a young age Marshall was schooled in the conservative values of self-reliance, individualism, and property ownership that shaped his jurisprudence.
Marshall’s father, Thomas, came from a modest background. Lord Fairfax, the largest landowner in Virginia, hired Thomas and his friend George Washington to survey Fairfax’s more than five million acres in the Northern Neck of Virginia. The two young men worked side by side surveying and selling plots. Fairfax then became the patron of the Marshall family, and Thomas slowly acquired more land. Before John Marshall turned eighteen, the family moved to a larger farm at Oak Hill, a short distance away. As Thomas prospered, he became a respected leader in Fauquier County. Eventually, he was elected to the House of Burgesses.38
Marshall’s mother, Mary Keith, was descended from two of Virginia’s leading families, the Randolphs and the Ishams. She was the granddaughter of William and Mary Randolph, the “Adam and Eve” of colonial Virginia society. Marshall’s relation to the Randolphs was tainted by scandal, however. His maternal grandmother, Mary Isham Randolph, was a free spirit who could not be constrained. At sixteen she eloped with a poor Irish workman, with whom she had a child. Members of her family chased her down and allegedly killed her husband and child. The trauma caused Mary to suffer an emotional collapse. Later, she had an affair with an unsavory Scottish minister, James Keith, who was seventeen years older than she was. After they were caught in flagrante delicto, the Randolphs banished Keith from his parish. When Mary was old enough to marry Keith without her parents’ permission, she did so. The Randolphs refused to pay her dowry and cut Mary out of any inheritance. The cloud of scandal turned darker when rumors swirled that Mary’s first husband was, in fact, still alive, casting doubt both on the legality of her second marriage and the legitimacy of her eight children, including John Marshall’s mother. Perhaps as a consequence of this scandal, John Marshall rarely acknowledged his relationship to the Randolphs.39 His grandmother’s shame and the lack of a dowry undoubtedly made it more difficult for his mother to find a suitable husband.
Marshall’s mother was a first cousin of Thomas Jefferson’s mother, so Thomas Jefferson was Marshall’s second cousin. Jefferson’s father, Peter, was, like Marshall’s father, a farmer and surveyor. Peter Jefferson befriended William Randolph, the eldest brother of Marshall’s maternal grandmother. When William Randolph died in 1746, he did something unexpected: Rather than naming one of his relatives as his executor, he chose his friend Peter Jefferson and placed him in charge of the family’s ancestral home, Tuckahoe. This was where Marshall’s grandmother had been raised. In addition, William Randolph explicitly disinherited Marshall’s mother and grandmother, so much of the Randolph property that otherwise might have flowed to John Marshall’s family ended up in the hands of the Jefferson family. As a result, Thomas Jefferson grew up at Tuckahoe with five hundred slaves. There he enjoyed enormous privilege and wealth. His cousin John Marshall and his fourteen siblings grew up on the frontier working the stony soil on their father’s modest farm.40
It is one thing to grow up poor. It is another to grow up bearing the shame of an ancestor and the knowledge that your family’s wealth was irrevocably in the hands of a distant cousin. Yet Marshall responded to these circumstances without resentment. His upbringing allowed him to identify with the common man and also gave him the aplomb to associate with his social superiors. He did not become a prisoner of either his bloodline or the economic class he was born into. He moved fluidly between classes. The narrative of the Marshall family’s fall from grace also endowed him with the boldness to lift himself up and the confidence of knowing that this was possible.
Marshall’s father taught him to read and write, and his mother, Mary, who, unlike most frontier women, was l
iterate, inspired an appreciation for reading in all her children. By the age of twelve, Marshall could transcribe Alexander Pope’s Essay on Man. Lord Fairfax provided Thomas with books for his oldest son. One of Marshall’s favorites as a young man was William Blackstone’s Commentaries on the Laws of England, which may have influenced his decision to practice law. When Marshall was fourteen, he was sent to a grammar school about one hundred miles away in Westmoreland County that was run by a strict Anglican minister, Reverend Archibald Campbell. That was the only year of formal education that Marshall received. Campbell’s school stressed mathematics and Latin. It was there that Marshall befriended his classmate James Monroe, whose friendship would turn bitter in later years. The next year John Marshall returned home, presumably for financial reasons. The local minister, Reverend James Thompson, moved into the Marshall household and tutored Marshall and his siblings in exchange for bed and board. From Thompson, Marshall mastered Latin and read Horace and Livy. After that, Marshall had no teacher other than his dictionary and the few books his father brought home from Lord Fairfax’s library.41
Growing up in the relative isolation of the frontier, Marshall had little opportunity to socialize outside his family. His peers were his younger siblings, who looked up to him. At a young age Marshall had to assume substantial responsibility for raising the other children. Other boys his age were, he thought, “entirely uncultivated,” but he enjoyed spending time with them in “hardy athletic exercise.” He patterned himself after his father, whom he once described years later as “my only intelligent companion” and “affectionate instructive friend.”42 Marshall’s characterization of his father is curious given the reality. His father may have been a strong role model, but he was neither affectionate nor encouraging. By modern standards, both parents were distant and strict, which is understandable—with fifteen children to raise on a struggling farm, his parents had little time to spare. After Marshall left his family home to join the Continental Army, there is little evidence he corresponded with or visited either parent. Yet, over the course of Marshall’s life, his expression of admiration for his father, like his attitude toward Washington, suggests that at an early age Marshall attached himself to authority figures. These two qualities, a natural predisposition for leadership and a respect for authority, shaped his philosophy and his career in public service.
Marshall’s childhood was influenced by the French and Indian Wars, which ended when he was eight. Virginians on the frontier were made uneasy by the proximity of Indian tribes and French garrisons. Even boys as young as fourteen typically carried guns slung over their backs for protection.43 Though the triumph of Britain in the war removed the French threat, the war also taught people living in the Piedmont that they needed to be ready to defend themselves and that they could not rely on the British army to protect them. Thomas Marshall took this lesson to heart. He prepared his oldest son for service in the local militia unit and taught him to be an excellent rifleman. When they heard the news that the first shots of the Revolutionary War had been fired at Lexington and Concord in 1775, Thomas and John Marshall volunteered for the 3rd Virginia Regiment.44
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WHY WOULD MEN such as John and Thomas Marshall, living in the isolation of the Virginia frontier hundreds of miles from Massachusetts and struggling to support their families, concern themselves with colonial politics? Why would stamp taxes or tea concern men who had little use for either? And why would the events in a place as remote as Boston raise any alarm to someone who had never ventured beyond the western edge of northern Virginia?
Virginians living in the Piedmont were motivated by local concerns to join the struggle for independence. Virginia in the 1770s was struggling with a long-term economic crisis triggered by a steep drop in tobacco prices and a string of bad weather that devastated crops. As immigration surged, there was a shortage of land, and after George III decreed that settlers could not move farther west into Indian territory, many Virginians felt that their opportunities were limited. On top of that, poll taxes were raised to support the presence of British forces, squeezing the middle class especially hard.45 Most Virginians in the northern and western counties resented the wealthy gentry who owned the Tidewater plantations and dominated colonial politics.46 The Tidewater elite lived like the British gentry, and they were obsessed with wealth, gambling, drinking, and horse racing. By the 1770s, many of them were living far beyond their means, and their indebtedness to the Scottish traders who controlled the tobacco market threatened the colony’s economy. All this was alien to the toilsome life of the Piedmont. Most Virginians did not aspire to ape the affectations of upper-crust Englishmen. They blamed the Tidewater gentry for the colony’s moral decline.47 By the 1770s, nearly one in five Virginians had joined Presbyterian, Baptist, or Methodist congregations. They resented the taxes they were required to pay for the support of Anglican ministers, whom many saw as immoral.48
These frustrations of ordinary Virginians were ignited by the appointment of Lord Dunmore as royal governor of the colony. Lord Dunmore was only the second royal governor to reside in Virginia, and he was ill-suited to the job. He was an obstinate bully with no patience for the people’s elected representatives in the House of Burgesses.49 Given the hostility Virginians felt toward the Scottish tobacco traders, it hardly helped that the governor was a Scotsman. Dunmore, one wit commented, “was as popular as a Scotsman could be” in Virginia.50
In March 1775, Lord Dunmore canceled the colony’s elections for representatives to the Second Continental Congress called in Philadelphia to discuss British colonial policy. The following month, Dunmore seized fifteen barrels of gunpowder from the public magazine in Williamsburg to keep them from falling into the hands of rebels. These two incidents sparked fears that the unpopular governor was planning some sort of military action against Williamsburg. The fact that this happened as British troops marched on Concord and Lexington to seize colonists’ arms inflamed the public. Confronted by angry colonial leaders, the governor impetuously threatened to arm slaves against white Virginians. White Virginians had a longtime fear of a slave insurrection: Some slaves had already revolted, hoping to win their freedom in exchange for supporting the British Crown.51 When Dunmore ordered the arrest of Patrick Henry, one of Virginia’s popular political leaders, local governments resolved to prevent Henry’s arrest by force of arms. Some Virginia politicians, such as Richard Henry Lee, fanned public outrage by falsely alleging that the British planned to kidnap members of the Continental Congress to prevent them from meeting in Philadelphia.52
By June, Governor Dunmore had lost control of the situation. He fled Williamsburg on a schooner and returned later with a British fleet to suppress the incipient rebellion. Though many Virginians still hoped for reconciliation with Britain, the final straw came when Lord Dunmore issued a proclamation in November 1775 that freed all slaves who were willing to bear arms against the rebels. John and Thomas Marshall and their fellow Virginians were now prepared to fight for their independence. Like most white Virginians, they saw no irony in defending both freedom and slavery under the same flag.53
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ON A WARM SPRING MORNING in May 1775, nineteen-year-old John Marshall arrived by foot at the local militia’s first drill in Germantown. He carried a tomahawk and a rifle and wore a beaver hat, hunting shirt, and white-fringed pants that were a faded shade of periwinkle blue. The regiment met on a quiet farm field twelve miles from the county courthouse. When the regiment’s captain failed to appear, Marshall, who had practiced with his father, volunteered to lead the drill. He assumed the leadership of the company with a naturalness that seemed remarkable for such a young man. After the drill, Marshall extolled the men to join the newly formed regiment to defend the colony against Lord Dunmore. He described the recent outrages imposed on Bostonians and warned the men that the same could happen in Virginia. Though Marshall had probably never traveled much farthe
r than twenty miles from his home, he already had a sense that Americans shared a common destiny.54
Later that summer the Virginia convention met illegally to plan the defense against the British regulars commanded by Lord Dunmore. They formed battalions of minutemen. The most important of these were the Culpeper minutemen, who were charged with the defense of the western frontier in Fauquier County. Marshall quickly volunteered for the Fauquier Rifles, a company of about three hundred sharpshooters, and he was commissioned as a first lieutenant. The company marched under a flag bearing the warning “Don’t Tread on Me” and an image of a menacing rattlesnake. The men did not have cannons, bayonets, or uniforms like the British redcoats. Instead, they carried their own tomahawks and muskets. They wore homespun osnaburg hunting shirts embroidered with the words “Liberty or Death,” fringed deerskin trousers, and Indian boots. Their rustic appearance left no doubt that this was a homegrown battalion of local farmers and craftsmen.55
In September, under the command of his father, who had been commissioned as a major, Lieutenant Marshall and his men marched to Williamsburg where Patrick Henry, the commander of the Virginia militia, was preparing to attack Lord Dunmore’s forces in Norfolk, Virginia’s largest city, which was sixty miles south, near the mouth of the James River. Norfolk seemed impenetrable. As the city was surrounded by water and marshland, the only way to attack Norfolk would be to storm across the Great Bridge, a narrow 150-yard wooden trestle that crossed the Elizabeth River. At one end was a British fort guarded with a dozen cannons.