As he neared the end of his life, the chief justice felt freer to dispense wisdom on a wide range of subjects—American history, French politics, the Russian invasion of Turkey, the resettlement of former slaves in Liberia, the construction of a monument in Washington for its eponymous hero. Marshall took a special interest in counseling his grandchildren on their education. Marshall thought that a classical education in Greek and Latin was essential even though he had little formal education himself. He promised his grandson that if he kept up his Latin, “[y]ou will not be reduced to the mortification of saying ‘fugit interea, fugit irreparabile tempus.’” (It flies, irretrievable time flies.) Instead, he told his grandson, “You may rejoice . . . that in youth you have observed the valuable injunction ‘Carpe horam,’ [seize the hour] and turned every hour to the best account.”16 On the moral education of children, Marshall remarked in his typically self-effacing manner, “I have been croaking on about this subject when I could get anybody to listen to me these thirty years, but have made no other progress than to get myself placed among those old men who are always extolling the times that are past at the expense of the present.”17
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MARSHALL WAS NOT LOOKING FORWARD to the journey home at the end of the Court’s 1835 term. He would miss Story’s camaraderie, and he knew that there would not be many more opportunities for them to sit together on the bench. “We have an immensely severe winter,” he wrote his grandson from the capital. “I have fears that I shall not have a very comfortable journey to Richmond. But patience is sorrows best salve.”18
Marshall’s foreboding proved true. The winter of 1834–1835 held on tenaciously. Marshall headed back home on the spring equinox, but the roads were still thick with ice. On the way to Richmond, his carriage skidded and rolled over. Marshall’s spine was seriously damaged, but he survived and returned to Richmond to recuperate. He was in severe pain and confined to his room, unable to sit up or write for several weeks.19 From his sick bed, he struggled to supervise the shipping of furniture and books from Richmond to Oak Hill. He anxiously looked forward to joining his son James and his newest grandson, Thomas, there, but his recovery was slow.20 Marshall’s pain increased. He could not eat. His energy flagged, and he lost weight. He struggled to resume his morning walks, now reduced to half a mile—just enough to visit Polly’s gravesite a few blocks away. He tried to cheer up when guests came, and assured his colleagues by post that he would return to the Court in January.21 He considered whether he should return to Philadelphia for back surgery, but he feared that “my old worn out frame cannot . . . be repaired.” Marshall mused that if he could “find the mill which would grind old men, and restore youth, I might indulge the hope of recovering my former vigor and taste for the enjoyments of life. But that is impossible.”22
It was not simply the agonizing pain or the loss of Polly that had lessened his taste for life. Marshall saw with cold clarity that he had become irrelevant in the age of Jackson. His time had passed. He was still admired—the way one might admire a fine old house, well-built but no longer in fashion. Marshall’s reasoned voice could no longer be heard above the din that threatened to shatter the Union.
By late May, he sat with the circuit court in Richmond although he was still in terrible discomfort. His son Edward persuaded him in June to seek medical help, and so Marshall and Edward boarded a steamboat to Philadelphia via Baltimore and lodged at the home of a Mrs. Crim on Walnut Street. Two prominent Philadelphia doctors, Nathaniel Chapman and Jacob Randolph, examined Marshall and determined that his back pain was the least of his problems: Marshall had an enlarged liver with several large abscesses and the pressure on his stomach prevented him from absorbing nutrients.23
After several weeks, Marshall was too weak to eat. A month passed as he lay in bed drifting along the shore between life and death. By late June, it appeared he would not make it. Marshall’s son Thomas raced to Philadelphia to see his father one last time, stopping in Baltimore en route, where he was caught in a sudden windstorm and took cover in a courthouse. A strong gust toppled the courthouse chimney, raining stones through the roof. A brick struck Thomas in the head, shattering his skull. Thomas died two days later, on June 29.24 It was an inauspicious sign of the times to come: An ill wind brought the collapse of a courthouse and cost America’s greatest jurist his favorite son. Now only four of his ten children remained. But Marshall’s infirmity spared him from learning of this one last family tragedy.
On July 4, the same day that John Adams and Thomas Jefferson had died nine years earlier, John Marshall rallied. He sat up for the first time in weeks. He was completely lucid and felt well enough to compose an epitaph for his gravestone. Two days later, on July 6, 1835, Marshall’s breathing stopped at six in the evening. The chief justice slipped away peacefully.
The Supreme Court had lost its lion. The Union had lost its compass.
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THE NATION MOURNED the loss of the chief justice with the kind of somber ceremony and affection that it had mourned Washington. Marshall was the last giant of the Revolutionary generation to pass into history. In Philadelphia there was a mass funeral procession from Marshall’s lodgings to the boat that would carry his body home to be laid to rest next to Polly’s in Shockoe Hill Cemetery. Throughout the nation, flags flew at half-mast for an extended period. The citizens of Philadelphia met to approve a resolution that “the nation suffers a peculiar and irreparable loss . . . Seldom has an individual died more universally or more justly admired, esteemed, cherished, or deplored.”25
Newspapers overflowed with eulogies. The Daily National Intelligencer wrote that Marshall “has now descended to the tomb crowned with a larger share of public esteem and public regret, than any citizen since the departure of Washington.”26 The National Gazette declared that a “nearly unanimous chorus of fervent eulogy and heartfelt regret is resounding on every side . . . All this speaks well for the country. It shows that however pernicious may have been the operation of faction . . . it has not yet destroyed the knowledge of what is right in the land.”27 Even the Richmond Enquirer, which often criticized Richmond’s most famous citizen, wrote that Marshall was “as much loved as he was respected. There was about him so little of the ‘insolence of office,’ and so much of the benignity of the man, that his presence always produced the most delightful impressions. There was something irresistibly winning about him.”28
Justice Story observed that after Alexander Hamilton John Marshall was “the greatest and wisest man of this country.” Story suggested his epitaph should read “Here lies the expounder of the Constitution.”29
President Jackson conceded that he often disagreed with Marshall’s reading of the Constitution, but “in the revolutionary struggles for our National independence, and . . . in the subsequent discussions which established the forms and settled the practice of our system of Government, the opinions of John Marshall . . . gave him a rank amongst the greatest men of his age.”30
Former Senator Jeremiah Mason of New Hampshire wrote that if “John Marshall had not been Chief Justice of the United States, the Union would have fallen to pieces before the General Government had got well under way . . . John Marshall has saved the Union, if it is saved.”31
But the country was not universal in its praise for Marshall’s service. The editor of the New-York Evening Post, William Leggett, acknowledged that Marshall was “a good and exemplary man” who loved his country, but Leggett expressed his “satisfaction” that Marshall was removed from his station. He accused Marshall of being hyperpartisan, “ultra federal or aristocratic,” and for distrusting “the virtue and intelligence of the people.”32 Leggett’s editorial triggered a ferocious response from other newspapers that called the Post “fiends . . . hyenas . . . vampyres . . . monsters” and attacked Leggett as a “rabid Jacobin . . . miserable maniack . . . savage . . . unfortunate malignant . . . crazy.”33 Partisanshi
p did not pause for Marshall’s passing.
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TO FILL THE CHIEF JUSTICE’S SEAT, President Jackson once more nominated his friend and ally Roger Taney. Despite the fact that Taney had been rejected twice by the Senate as a nominee for the Treasury and for the Supreme Court, Jackson now had the votes to confirm Taney as the fifth chief justice. Taney’s unfortunate tenure on the Court was overshadowed by his ill-fated decision in Dred Scott v. Sandford to deny citizenship to any person descended from slaves and guarantee the right to own slaves beyond the slave states.34 Taney’s misguided effort to resolve the slavery question in Dred Scott was precisely the kind of overreaching that Marshall had wisely avoided. Taney not only damaged the Court’s legitimacy for a generation, his decision in Dred Scott tore apart the Union that Marshall had fought to preserve.
Marshall’s judicial legacy was now threatened not only by Taney’s appointment but also by President Jackson’s ruthless persecution of the Indians. Just months before Marshall’s death, President Jackson wrote a threatening letter to the Cherokee again, demanding their removal from their traditional lands. In defiance of the Supreme Court’s decision in Worcester, Jackson warned that “as certain as the sun shines to guide you in your path, so certain is it that you cannot drive back the laws of Georgia from among you. Every year will increase your difficulties.” Resistance by the Indians was futile. “This cannot be allowed. Punishment will follow, and all who are engaged in these offences must suffer.”35
In 1835, Jackson pressured one Cherokee leader, Major Ridge, to sign the Treaty of New Echota that surrendered all the Cherokee lands in exchange for federal land promised out west. Ridge represented only a tiny fraction of the Cherokee, and other tribal leaders rejected the treaty. The Senate barely ratified the treaty by a single vote.
What followed three years later was the catastrophic forced removal of some fifteen thousand Cherokee by U.S. troops under the command of General Winfield Scott. Federal troops brutally marched Indians hundreds of miles. The army failed to provide proper food, water, shelter, or clothing for these civilians. As a result, about four thousand Cherokee men, women, and children died on the Trail of Tears.36 No other president has acted so overtly in contempt of a Supreme Court decision. And few other presidents have acted so inhumanely. The Trail of Tears was surely one of the ugliest episodes in American history, and it was a complete repudiation of the Marshall Court by the nation’s highest law enforcer.
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IT IS TEMPTING to contrast Marshall’s life and legacy with Jefferson’s. Until Jefferson’s passing, they lived as mirror opposites for half a century in almost every way. No Marshall biography can avoid taking sides in their conflicted relationship. That is not to say that Marshall was always right or that Jefferson was always wrong. Both were exceptional and entirely human. They were flawed, and sometimes they erred. Yet both Marshall and Jefferson were indispensable to the founding of the Republic.
Jefferson was an eloquent writer who more than any other Founder gave voice to the philosophy behind American democracy. Jefferson drafted the Declaration of Independence; established and led the Republican Party; served as Virginia’s first governor, minister to France, secretary of state, vice president, and president; acquired the Louisiana Purchase; and built the University of Virginia. Any one of these accomplishments would have been praiseworthy and deserves historical recognition.
Jefferson lived a life of privilege and never had to work to support himself. He depended on an army of plantation slaves, and his extravagant lifestyle ultimately depleted his estate. His cousin Marshall was born in a log cabin on the frontier, the eldest of fifteen children. He grew up poor and without Jefferson’s education or advantages. As an adult, Marshall prospered both as an attorney and a landholder, and left behind a significant estate. Unlike Jefferson, who was groomed for leadership as a member of the elite, Marshall had to invent himself, and the experience of self-invention gave him the confidence and imagination to reinvent the law.
While Marshall suffered the winter at Valley Forge as a rifleman in the Virginia regiment, Jefferson, as governor, was preoccupied with the design of his new state capital. And when the British invaded Richmond and Charlottesville, Jefferson ran away. Captain Marshall and his men fought the invaders. And while both served in the state’s government, Jefferson was disgraced by his failure to properly prepare the state’s defenses and never sought state office again.
As the American minister, Jefferson was a popular figure in France. Perhaps imprudently, he became entangled with the French revolutionaries. His correspondence from Paris misrepresented the violence and the terror of the French Revolution, and even after he returned to the States, he continued to romanticize it. Marshall’s tenure in Paris was less successful than Jefferson’s, and though he initially sympathized with the French Revolution, his time there taught him not to trust the French government.
While Jefferson was in Paris, he did not support the adoption of the federal Constitution. Marshall helped Madison lead the fight for the Constitution’s ratification at the critical Virginia Ratifying Convention. Without Marshall’s successful lobbying, the Constitution might never have been ratified by the nation’s largest and most important state. When Jefferson returned from Paris, he fought for a more limited federal government and supported states’ rights and nullification while Marshall championed federal power and opposed states’ rights.
Both Jefferson and Marshall, like so many of their contemporaries, were slaveholders, and neither freed their own slaves during their lifetimes. But Marshall seemed to have a more generous and humane relationship with his slaves, perhaps, in part, because he was not a plantation owner with a large number of slaves working the fields under an overseer. As an attorney, Marshall defended slaves pro bono against their masters. As a member of the Virginia General Assembly, Marshall opposed slavery and the slave trade, and as chief justice, he ultimately upheld the rights of Indian tribes to their own land.
As secretary of state, Jefferson often had a stormy relationship with Washington’s cabinet. He sided with the French against the British during the French Revolutionary Wars, and he secretly conspired with the French ambassador, Citizen Genet, in ways that undermined Washington’s neutrality policy. Privately, Jefferson criticized Washington. Later, as Adams’s vice president, Jefferson commissioned slanderous publications against President Adams. By contrast, Marshall defended the neutrality policy, criticized Genet, and lauded Washington and Adams.
Jefferson and Marshall had a fundamentally different relationship to authority figures. Jefferson was often skeptical and even disloyal, especially toward Washington and Adams; Marshall’s whole career was defined by his loyalty to Washington, General Steuben, and Adams. Jefferson was as fiercely loyal to his ideology as Marshall was to his leaders. Marshall would compromise his own opinions before he would compromise his associates. On a personal level, Marshall was warmer and more gregarious; Jefferson preferred the world of books and ideas.
Marshall and Jefferson fought on opposing sides of every major political issue. Washington persuaded Marshall to run for Congress to oppose the growing influence of Jefferson’s political party. Marshall supported President Adams’s decision to extradite Jonathan Robbins to face trial in Britain for mutiny; Jefferson used that political issue against Adams. Though Marshall did not publicly oppose the Alien and Sedition Acts at the time they were first proposed, Jefferson did. And while Marshall defended Jay’s Treaty, Jefferson and his partisans attacked it. As secretary of state, Marshall maintained neutrality but privately favored Britain over France while Jefferson boasted that he looked forward to having dinner with a victorious Napoleon in London. As chief justice, Marshall defended the judiciary’s independence from Jefferson and the Republican Party. Jefferson’s disregard for judicial independence was demonstrated by his support for the repeal of the circuit courts, the impeachmen
t of Justice Chase, and his involvement in Burr’s treason trial. Time and again, Jefferson and his lieutenants criticized Marshall’s decisions and sought to undermine his authority on the Court.
Jefferson, as the heir to wealth and privilege, romanticized the common man; Marshall, as the common man, defended the rights of landholders and creditors. Jefferson may have posed as the revolutionary, but his republican ideology was more about preserving the agrarian past, the plantation system, slavery, and states’ rights than the country’s future. Jefferson was suspicious of cities, finance, and manufacturing. He did not foresee the creation of a truly national market. Marshall’s defense of property rights may have appeared conservative, but his expansive reading of the Constitution made possible the creation of the modern federal government and the modern national economy. Marshall’s Constitution was truly revolutionary. In the final analysis, Jefferson’s localized vision of a republic of yeoman farmers proved anachronistic, while Marshall’s robust federalism triumphed.
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MARSHALL WAS NO PURER than his contemporaries. He was at best naïve when he dealt with Talleyrand. As chief justice, his motives were sometimes too overtly partisan. He did not always recuse himself from cases in which he had a clear interest, most notably Marbury v. Madison. In Marbury, he most likely solicited a perjured affidavit from his own brother in order to prove the existence of a commission. Even in Martin v. Hunter’s Lessee, Marshall allegedly helped draft the majority’s opinion even though the case concerned Fairfax’s property, which he had a personal investment in. When he was faced with real moral dilemmas, he abandoned his own moral principles and applied legal rules without regard for their human consequences. His opinions in Antelope and Cherokee Nation v. Georgia, for example, caused untold misery for African captives and Indians, respectively. Jefferson accused Marshall of “twistification” in the Burr trial, and it is true that Marshall often reached decisions in ways that were inconsistent.
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