Without Precedent

by Joel Richard Paul

  In early December, Lieutenant Marshall took part in a lightning-quick raid across the bridge, but they were easily repulsed by a hail of British fire. Five days later, the British launched a poorly executed counterattack. Marshall and the Culpeper sharpshooters positioned on the high ground above the river shot dozens of redcoats as they charged over the bridge. After suffering massive casualties, the British withdrew and ultimately abandoned Norfolk. The Great Bridge was Marshall’s first taste of combat and was a signal victory for the Virginians. While the city was now back in the hands of Virginians, the townspeople were Loyalists, and a significant British fleet remained in the harbor. Marshall’s regiment fired on the fleet but could do little more to drive them away. On New Year’s Day 1776, Lord Dunmore gave the order to the British fleet to bombard the city. Cannon balls ripped apart the great port. It was a terrifying attack. Before the rebels retreated, they joined in the destruction by setting fire to the homes of wealthy Loyalists. Marshall watched helplessly as British and American forces together incinerated Virginia’s largest metropolis. Soon black smoke blotted out the sun. Not a single residence was spared.56 Marshall later described the burning of Norfolk as “one of those ill-judged measures, of which the consequences are felt long after the motives are forgotten.”57

  The Revolutionary War was a formative experience for the young frontiersman. It brought Marshall out of the isolated valley of his rural upbringing and exposed him to the wider world. He experienced firsthand the failure of state government and the need for a strong national government to defend against foreign adversaries. The ghastly image of that once great city reduced to smoldering rubble disabused him of any romantic notion of warfare or revolution. Instead, the young frontiersman, so skilled in the use of a gun, would later pursue the art of diplomacy.

  Death and destruction demonstrated to Marshall the essential fragility of the social contract. It was easy for Jefferson to write about revolution since he had never experienced war firsthand. Marshall’s military experience taught him to eschew facile ideologies and resort to violence. The elements of Marshall’s conservatism were now formed—a belief in ordered liberty and a respect for property, national defense, moderation, and the need for reconciliation.

  CHAPTER TWO

  A REVOLUTIONARY CAPITAL

  In 1776, Richmond Town was an indistinct village along the James River. At the time, it consisted of a rope factory, a tobacco warehouse, and an open-air market in a pasture along Shockoe Creek. The town had little more than one hundred households, two brick buildings, one homely church, no paved streets, and herds of cows and pigs. Visitors were greeted by an insalubrious odor that rose from a slaughterhouse. Out of six hundred inhabitants, about 40 percent were enslaved, many of whom toiled at the warehouse to earn wages for their masters. There were also about forty free black tradesmen.1 There were no rich or poor neighborhoods, white or black. Houses were scarcely more than shacks scattered over two hillsides. Only a handful of the whites could afford to own more than three or four slaves, and only seventy households could afford a horse. The town included five barbers, one schoolteacher, two doctors, one chemist, and one lawyer.2 In short, Richmond was an unlikely location for the capital of the largest state in the confederation when Governor Thomas Jefferson decided to move Virginia’s capital there.

  Jefferson despised the colonial capital of Williamsburg when he was a student at the College of William & Mary. He was intimately familiar with the governor’s palace there. As a student, he was a frequent guest of the royal governor, who was a family friend. In fact, Lord Dunmore retained Jefferson to redesign part of the interior of the palace. Neither man could have imagined how soon fate would cast them on opposite sides of a revolution. But the charm of the college town and the pomp of the royal governor’s palace suited neither Jefferson’s aesthetic ambitions nor his republican tastes. As governor, Jefferson scribbled a damning indictment of the capital city in a marginal note to himself: “Wmbsgh. nevr. cn. b. grt. __100 y. xprce.” (Williamsburg never can be great [after] one hundred years’ experience.) Jefferson dreamed of building a “magnificent” classical capital cleansed of fussy Georgian buildings.3 Privately, Jefferson also hoped that moving the capital to a more central location would reduce the power of the Tidewater gentry.4 And there was another personal consideration: Richmond was half the distance of Williamsburg from Monticello.5

  The threat of a British invasion of Williamsburg convinced some legislators to move the capital farther west, and so Jefferson’s proposal squeaked through the General Assembly by a single vote in 1779. One might imagine that in the midst of war the last thing on the governor’s mind would be constructing a new capital. But Jefferson loved architecture, and his preoccupation with the design of the capital may explain his utter failure to prepare the state’s defenses against a British invasion.

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  AFTER FIGHTING in the fierce but unsuccessful battles at Brandywine, Germantown, and Monmouth, Marshall was promoted to captain in the 11th Virginia Regiment. By the end of 1779, his men had all quit the army. Marshall had to be furloughed while the army tried to enlist more soldiers. Marshall visited his family in Yorktown, where his father was temporarily stationed. Their neighbor was Jaquelin Ambler, who was soon to be the state treasurer. Though the Amblers had lost much of their wealth as a consequence of the war, they were still considered the cream of the colony’s social and political elite. Ambler introduced the lanky captain to his three eligible daughters, and Marshall, now twenty-four, instantly fell for the charms of Mary, the youngest, a pale, shy girl of only thirteen who was known as Polly. Marshall impulsively decided he would wed her when she was old enough. First, he needed a suitable profession. Since he had served as an advocate general in the army, he decided to enroll in law school in Williamsburg. It also gave him a convenient excuse to remain near Polly.6

  Marshall began at William & Mary in the spring of 1780. He attended the lectures of the university’s venerable chancellor, George Wythe, the first professor of law in America and a signer of the Declaration of Independence. Wythe, a classics scholar, Virginia attorney general, and judge, trained many of the great Virginia lawyers for a generation, including two of Marshall’s friends, James Madison and Bushrod Washington, and the men who would become his rivals, Spencer Roane and Thomas Jefferson.

  The basic texts for the course were British: Matthew Bacon’s A New Abridgment of the Law and Blackstone’s Commentaries. Blackstone had transformed legal education in Britain by presenting the common law as a unified and rational system of rules. In addition to Blackstone, Marshall read Montesquieu and David Hume. Marshall was particularly influenced by the latter, who rejected Blackstone’s idea of a natural law and argued instead that society’s rules derive from state power and common experience rather than an abstract idea of justice.7

  This was Marshall’s only exposure to higher education. He worked hard, diligently copying rules almost verbatim from his textbooks, but he had little patience for law school. His mind was restless and his thoughts kept turning to the prospect of marrying Polly Ambler. In the margins of his notebook, he frequently scribbled her name over and over as if it were a mantra. Six weeks into his studies at William & Mary, Marshall abruptly quit when Ambler announced that he was moving his family to the new capital of Richmond. Marshall decided that he, too, would move to Richmond. But first, he took an examination for the bar and was granted a license to practice law. The license was signed by Governor Jefferson, who would rue the day that Marshall became an attorney.8

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  THE GOVERNMENT IN VIRGINIA dithered for months over how, and whether, to raise more troops. Governor Jefferson had little interest in such mundane subjects. And Marshall soon lost patience with the state’s ineffectual government. He decided to rejoin the army in Philadelphia, and he walked the 250 miles from Richmond to there. When he arrived, General Washington could spare no men to
defend Virginia, but he sent General Steuben to command the local forces in Virginia. Together, Marshall and Steuben lobbied the Virginia legislature to expand the militia, but Governor Jefferson and his advisers were not sympathetic. The legislature refused to appropriate money for arms and uniforms. Yet by Christmas of 1780, Marshall and Steuben, acting on their own initiative, somehow managed to recruit fifteen hundred volunteers.9

  That same month, sixteen hundred crack British troops under the command of General Benedict Arnold, who by now had defected to join the British, sailed up the James River to attack Richmond. Marshall and Steuben were stationed in Petersburg with only eight hundred men available to defend the commonwealth. Governor Jefferson had advance warning of the attack, but he gave it no credence. He did not summon the militia, and he waited almost until it was too late to evacuate the city. He and the legislature frantically fled to Charlottesville, leaving behind most of Richmond’s terrified residents. Arnold was astonished to find the capital of the largest state in the confederation undefended. Not a single shot was fired at the British. British troops blew up a powder magazine; torched four thousand barrels of tobacco, public buildings, factories, and homes; and looted the governor’s extensive wine cellar. Many slaves escaped with Arnold’s troops. After the British withdrew, the looting started. People smashed homes and looted their neighbors’ furnishings. By then, Marshall and his forces had finally arrived. It took days for them to restore order to the capital.10

  Jefferson and the General Assembly remained in Charlottesville as Arnold’s forces continued to rampage through Virginia. When General Steuben demanded the governor’s support to build fortifications to defend the capital, Jefferson procrastinated. Jefferson was too distracted, perhaps still sketching plans for his classical new capital, to worry about a foreign invasion. Besides, he had only a few weeks left before the end of his term in May 1781. He was preparing to leave office just days before the British forces stormed Charlottesville. Instead of focusing on the defense of the temporary capital, Jefferson made arrangements for sending away his family and most of his slaves and horses. He spent the day before the British arrived hiding his personal papers and silver at Monticello. When the British reached the undefended provisional capital, Jefferson took off.11

  The British spared his home at Monticello, and only a few of Jefferson’s more than one hundred slaves escaped. But Jefferson’s reputation was badly damaged by neglecting the defense of the commonwealth. The General Assembly, spurred on by Patrick Henry, voted to investigate Jefferson’s failure of duty. After General Charles Cornwallis surrendered at the Battle of Yorktown, the General Assembly abandoned the inquiry, but Jefferson never again sought state office.

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  IN FEBRUARY 1781, Marshall resigned from the Continental Army in frustration. He felt thwarted by the state’s complete failure to raise sufficient troops for its own defense. His military service taught him that a nation of thirteen independent sovereign states could not defend itself. Marshall’s disillusionment with state government led him to conclude that the nation’s survival depended on a strong federal government.

  As the courts remained closed due to the war, there was little opportunity to practice law. With few prospects for earning a living, Marshall decided to run for the Virginia House of Delegates in the spring of 1782. He was elected to represent Fauquier County, which his father had also represented. There’s no evidence that Marshall had political ambitions prior to that, but it gave him a convenient excuse to remain in Richmond, where he could pursue Polly.

  At twenty-seven, Marshall did not quite cut a dashing figure as a suitor to the youngest daughter of one of Virginia’s leading families. He dressed casually in ill-fitted clothing, and his manners were polite but unrefined. But Marshall’s intense dark eyes, winning smile, and genial personality overcame his lack of social graces. He won Polly’s heart with poetry and humor. When she turned sixteen, he asked Polly to marry him, and to his shock, she refused. Devastated, he left her home and began riding back to Fauquier County. Almost as soon as Marshall disappeared, Polly abruptly changed her mind and began sobbing hysterically. Her cousin John Ambler galloped after Marshall and persuaded him that she regretted her decision. To prove her sincerity, Ambler gave Marshall a lock of Polly’s hair. Marshall returned to Polly’s house, and in January 1783, Marshall and Polly were married at the Amblers’ home in Richmond. Marshall gave Polly a locket containing that tress of hair, which she wore until the day she died.12

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  AS A YOUNG LAWYER with few clients, the only home Marshall could afford for his bride was a small two-room wood-frame house down the hill from the Amblers. As a wedding gift, Thomas Marshall gave his son three horses and a slave, Robin Spurlock, who would serve as Marshall’s manservant his entire life and would become a close confidante as well. Despite his humble origins and awkward manners, Marshall was welcomed into the Ambler family. He quickly adapted to his new circumstances. As the son-in-law of the state treasurer, he settled comfortably into the highest social circles in the capital.13

  In the House of Delegates, Marshall found common ground with the conservative Virginia Tidewater establishment. The gentry understood the need for a strong military and a centralized national government to protect property and contract rights. Marshall’s military experience taught him that the bonds of society are brittle and that men need government to curb their natural passions. He often found himself allied with the Lee family and their circle, especially Richard Henry Lee, as well as his schoolmate James Monroe. Monroe and Marshall enjoyed the theater together and discussed politics over cards in their favorite tavern. During this period, Monroe and Marshall were the closest of friends despite any political differences.14

  Marshall’s colleagues acknowledged his geniality and intellect early in his legislative career. Governor Randolph thought Marshall was “a promising young gentleman of the law.”15 After only a year of service, he was elected to the powerful Council of State. It did not hurt that he had the backing of his influential father-in-law. The council functioned as Virginia’s executive branch with the power to approve or disallow any action by the governor. The council was generally reserved for the wise old men in the House of Delegates. Marshall was the youngest man ever chosen, and some of the establishment, such as Edmund Pendleton, the president of the Virginia Supreme Court, grumbled that he should wait his turn. Though Pendleton thought that “young Mr. Marshall . . . is clever,” he felt that Marshall “should rather have earned [the position] as a retirement and reward by 10 or 12 years hard service in the Assembly.”16 This frontier soldier seemed like a bit of an upstart to some. Still, no one doubted his intellect and judgment.17

  One of the first issues to confront the council during Marshall’s tenure concerned the power of the governor to remove a justice of the peace, John Price Posey, for misappropriating the assets of an estate he was responsible for overseeing.18 The governor’s action was authorized by an act of the General Assembly, but Marshall argued that the act violated the spirit, if not the letter, of the state’s constitution. In Marshall’s view, the commonwealth’s constitution was supreme over any state statute. The Virginia constitution represented the supreme permanent will of the people rather than merely a transitory act by the people’s representatives. His colleagues on the council concurred and issued a strongly worded rebuke to the legislature; the council would not permit the removal of the local magistrate. Some people questioned the power of the council to strike down legislation, but the legislature and the governor ultimately deferred to the council. Though Posey proved unworthy of the council’s respect—he was later hanged for burning down a jailhouse and a county clerk’s office—the idea that a legislative act is subordinate to a constitution was now established as the foundational principle of judicial review. Marshall would later inscribe that principle into the federal Constitution in his most famous opinion as chief just
ice, Marbury v. Madison.19

  For the first year of his married life, Marshall struggled to support his wife on the small salary as a legislator. And he had few legal clients who were able to pay. Since becoming the capital, Richmond had quickly doubled its population, but the capital, like the rest of the country, was in a deep recession.20 Marshall’s cousin and fellow legislator Edmund Randolph became the state’s governor in 1786, and he sold Marshall his more established law practice, which Randolph had in turn purchased from their cousin Thomas Jefferson after Jefferson became governor. Ironically, Marshall became the proprietor of a law practice started by Jefferson.

  Marshall’s practice ranged from simple transactions such as leases, deeds, wills, and contracts to complex criminal and civil matters before judges throughout the state. He soon earned a reputation as a talented oral advocate. He could closely tailor an ungainly argument to appear more elegant and seductive. Just as important, he was always generous to his opponents in court and never condescended to juries or judges. He quickly became known as a rising star in the Virginia bar. When James Monroe was considering a legal career, he was strongly advised that “you will find it a disadvantage to come after” Marshall.21

  During this period after the Revolutionary War and before the Constitution, one fertile area of litigation concerned the indebtedness of many Virginians to British creditors from transactions that had preceded independence. By the end of the war, Virginians owed around $15 million to British creditors (equivalent to around $270 million today). This created a lucrative opportunity for lawyers, and by 1790, Marshall was considered the most successful attorney in Virginia in the defense of debtors.22