The Menace Of State Rights

Marshall’s reading of the Constitution may be summarized in a phrase: it transfixed State Sovereignty with a two-edged sword, one edge of which was inscribed “National Supremacy,” and the other “Private Rights.” Yet State Sovereignty, ever reanimated by the democratic impulse of the times, remained a serpent which was scotched but not killed. To be sure, this dangerous enemy to national unity had failed to secure for the state Legislatures the right to interpret the Constitution with authoritative finality; but its argumentative resources were still far from exhausted, and its political resources were steadily increasing. It was still capable of making a notable resistance even in withdrawing itself, until it paused in its recoil and flung itself forward in a new attack.

The connecting link between the Supreme Court and the state courts has already been pointed out to be Section XXV of the Act of 1789 organizing the Federal Judiciary. ¹ This section provides, in effect, that when a suit is brought in a state court under a state law, and the party against whom it is brought claims some right under a national law or treaty or under the Constitution itself, the highest state court into which the case can come must either sustain such a claim or consent to have its decision reviewed, and possibly reversed, by the Supreme Court. The defenders of State Rights at first applauded this arrangement because it left to the local courts the privilege of sharing a jurisdiction which could have been claimed exclusively by the Federal Courts. But when State Rights began to grow into State Sovereignty, a different attitude developed, and in 1814 the Virginia Court of Appeals, in the case of Hunter vs. Martin, ² pronounced Section XXV void, though, in order not to encourage the disloyal tendencies then rampant in New England, the decision was not published until after the Treaty of Ghent, in February, 1815.

The head and front of the Virginia court at this time was Spencer Roane, described as “the most powerful politician in the State,” an ardent Jeffersonian, and an enemy of Marshall on his own account, for had Ellsworth not resigned so inopportunely, late in 1800, and had Jefferson had the appointment of his successor, Roane would have been the man. His opinion in Hunter vs. Martin disclosed personal animus in every line and was written with a vehemence which was more likely to discomfit a grammarian than its designed victims; but it was withal a highly ingenious plea. At one point Roane enjoyed an advantage which would not be his today when so much more gets into print, for the testimony of Madison’s Journal, which was not published till 1840, is flatly against him on the main issue. In 1814, however, the most nearly contemporaneous evidence as to the intention of the framers of the Constitution was that of the Federalist, which Roane stigmatizes as “a mere newspaper publication written in the heat and fury of the battle,” largely by “a supposed favorer of a consolidated government.” This description not only overlooks the obvious effort of the authors of the Federalist to allay the apprehensions of state jealousy but it also conveniently ignores Madison’s part in its composition. Indeed, the enfant terrible of State Rights, the Madison of 1787-88, Roane would fain conceal behind the Madison of ten years later; and the Virginia Resolutions of 1798 and the Report of 1799 he regards the earliest “just exposition of the principles of the Constitution.”

To the question whether the Constitution gave “any power to the Supreme Court of the United States to reverse the judgment of the supreme court of a State,” Roane returned an emphatic negative. His argument may be summarized thus: The language of Article III of the Constitution does not regard the state courts as composing a part of the judicial organization of the General Government; and the States, being sovereign, cannot be stripped of their power merely by implication. Conversely, the General Government is a government over individuals and is therefore expected to exercise its powers solely through its own organs. To be sure, the judicial power of the United States extends to “all cases arising” under the Constitution and the laws of the United States. But in order to come within this description, a case must not merely involve the construction of the Constitution or laws of the United States; it must have been instituted in the United States courts, and not in those of another Government. Further, the Constitution and the acts of Congress “in pursuance thereof” are “the supreme law of the land,” and “the judges in every State” are “bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” But they are bound as state judges and only as such; and what the Constitution is, or what acts of Congress are “in pursuance” of it, is for them to declare without any correction or interference by the courts of another jurisdiction. Indeed, it is through the power of its courts to say finally what acts of Congress are constitutional and what are not, that the State is able to exercise its right of arresting within its boundaries unconstitutional measures of the General Government. For the legislative nullification of such measures proposed by the Virginia and Kentucky resolutions is thus substituted judicial nullification by the local judiciaries.

In Martin vs. Hunter’s Lessee, ¹ which was decided in February, 1816, Story, speaking for the Court, undertook to answer Roane. Roane’s major premise he met with flat denial: “It is a mistake,” he asserts, “that the Constitution was not designed to operate upon States in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the States in some of the highest branches of their prerogatives.” The greater part of the opinion, however, consisted of a minute examination of the language of Article III of the Constitution. In brief, he pointed out that while Congress “may … establish” inferior courts and, therefore, may not, it was made imperative that the judicial power of the United States “shall extend to all cases arising … under” the Constitution and acts of Congress. If, therefore, Congress should exercise its option and not establish inferior courts, in what manner, he asked, could the purpose of the Constitution be realized except by providing appeals from the state courts to the United States Supreme Court? But more than that, the practical consequences of the position taken by the Virginia Court of Appeals effectually refuted it. That there should be as many versions of the Constitution, laws, and treaties as there are States in the Union was certainly never intended by the framers, nor yet that plaintiffs alone should say when resort should be had to the national tribunals, which were designed for the benefit of all.

If Story’s argument is defective at any point, it is in its failure to lay down a clear definition of “cases arising under this Constitution,” and this defect in constitutional interpretation is supplied five years later in Marshall’s opinion in Cohens vs. Virginia. ¹ The facts of this famous case were as follows: Congress had established a lottery for the District of Columbia, for which the Cohens had sold tickets in Virginia. They had thus run foul of a state law prohibiting such transactions and had been convicted of the offense in the Court of Quarterly Sessions of Norfolk County and fined one hundred dollars. From this judgment they were now appealing under Section XXV.

Counsel for the State of Virginia again advanced the principles which had been developed by Roane in Hunter vs. Martin but urged in addition that this particular appeal rendered Virginia a defendant contrary to Article XI of the Amendments. Marshall’s summary of their argument at the outset of his opinion is characteristic: “They maintain,” he said, “that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made by a part against the legitimate powers of the whole, and that the government is reduced to the alternative of submitting to such attempts or of resisting them by force. They maintain that the Constitution of the United States has provided no tribunal for the final construction of itself or of the laws or treaties of the nation, but that this power must be exercised in the last resort by the courts of every State in the Union. That the Constitution, laws, and treaties may receive as many constructions as there are States; and that this is not a mischief, or, if a mischief, is irremediable.”

The cause of such absurdities, Marshall continued, was a conception of State Sovereignty contradicted by the very words of the Constitution, which assert its supremacy, and that of all acts of Congress in pursuance of it, over all conflicting state laws whatsoever. “This,” he proceeded to say, “is the authoritative language of the American People, and if gentlemen please, of the American States. It marks, with lines too strong to be mistaken, the characteristic distinction between the Government of the Union and those of the States. The General Government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the Constitution, and if there be any who deny its necessity, none can deny its authority.” Nor was this to say that the Constitution is unalterable. “The people make the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will. But this supreme and irresistible power to make or unmake resides only in the whole body of the people, not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.”

Once Marshall had swept aside the irrelevant notion of State Sovereignty, he proceeded with the remainder of his argument without difficulty. Counsel for Virginia had contended that “a case arising under the Constitution or a law must be one in which a party comes into court to demand something conferred on him by the Constitution or a law”; but this construction Marshall held to be “too narrow.” “A case in law or equity consists of the right of the one party as well as of the other, and may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either.” From this it followed that Section XXV was a measure necessary and proper for extending the judicial power of the United States appellately to such cases whenever they were first brought in a state court. Nor did Article XI of the Amendments nullify the power thus conferred upon the Court in a case which the State itself had instituted, for in such a case the appeal taken to the national tribunal was only another stage in an action “begun and prosecuted,” not against the State, but by the State. The contention of Virginia was based upon the assumption that the Federal and the State Judiciaries constituted independent systems for the enforcement of the Constitution, the national laws, and treaties, and such an assumption Marshall held to be erroneous. For the purposes of the Constitution the United States “form a single nation,” and in effecting these purposes the Government of the Union may “legitimately control all individuals or governments within the American territory.”

“Our opinion in the Bank Case,” Marshall had written Story from Richmond in 1819, a few weeks after M’Culloch vs. Maryland, “has roused the sleeping spirit of Virginia, if indeed it ever sleeps.” Cohens vs. Virginia, in 1821, produced an even more decided reaction. Jefferson, now in retirement, had long since nursed his antipathy for the Federal Judiciary to the point of monomania. It was in his eyes “a subtle corps of sappers and miners constantly working underground to undermine our confederated fabric”; and this latest assault upon the rights of the States seemed to him, though perpetrated in the usual way, the most outrageous of all: “An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his own mind by the turn of his own reasoning.”

Roane, Jefferson’s protégé, was still more violent and wrote a series of unrestrained papers at this time in the Richmond Enquirer, under the pseudonym “Algernon Sidney.” Alluding to these, Marshall wrote Story that “their coarseness and malignity would designate the author of them if he was not avowed.” Marshall himself thought to answer Roane, but quickly learned that the Virginia press was closed to that side of the question. He got his revenge, however, by obtaining the exclusion of Roane’s effusions from Hall’s Law Journal, an influential legal periodical published in Philadelphia. But the personal aspect of the controversy was the least important. “A deep design,” Marshall again wrote his colleague, “to convert our Government into a mere league of States has taken hold of a powerful and violent party in Virginia. The attack upon the judiciary is in fact an attack upon the Union.” Nor was Virginia the only State where this movement was formidable, and an early effort to repeal Section XXV was to be anticipated.

That the antijudicial movement was extending to other States was indeed apparent. The decision in Sturges vs. Crowinshield ¹ left for several years the impression that the States could not pass bankruptcy laws even for future contracts and consequently afforded a widespread grievance. Ohio had defied the ruling in M’Culloch vs. Maryland, and her Treasurer was languishing in jail by the mandate of the Federal Circuit Court. Kentucky had a still sharper grievance in the decision in Green vs. Biddle, ² which invalidated a policy she had been pursuing for nearly a quarter of a century with reference to squatters’ holdings; and what made the decision seem the more outrageous was the mistaken belief that it had represented the views of only a minority of the justices.

The Legislatures of the aggrieved States were soon in full hue and cry at the heels of the Court; and from them the agitation quickly spread to Congress. ¹ On December 12, 1821, Senator Johnson of Kentucky proposed an amendment to the Constitution which was intended to substitute the Senate for the Supreme Court in all constitutional cases. In his elaborate speech in support of his proposition, Johnson criticized at length the various decisions of the Court but especially those grounded on its interpretation of the “obligation of contracts” clause. More than that, however, he denied in toto the rights of the Federal Courts to pass upon the constitutionality either of acts of Congress or of state legislative measures. So long as judges were confined to the field of jurisprudence, the principles of which were established and immutable, judicial independence was all very well, said Johnson, but “the science of politics was still in its infancy”; and in a republican system of government its development should be entrusted to those organs which were responsible to the people. Judges were of no better clay than other folk. “Why, then,” he asked, “should they be considered any more infallible, or their decisions any less subject to investigation and revision?” Furthermore, “courts, like cities, and villages, or like legislative bodies, will sometimes have their leaders; and it may happen that a single individual will be the prime cause of a decision to overturn the deliberate act of a whole State or of the United States; yet we are admonished to receive their opinions as the ancients did the responses of the Delphic oracle, or the Jews, with more propriety, the communications from Heaven delivered by Urim and Thummim to the High Priest of God’s chosen people.”

For several years after this, hardly a session of Congress convened in which there was not introduced some measure for the purpose either of curbing the Supreme Court or of curtailing Marshall’s influence on its decisions. One measure, for example, proposed the repeal of Section XXV; another, the enlargement of the Court from seven to ten judges; another, the requirement that any decision setting aside a state law must have the concurrence of five out of seven judges; another, the allowance of appeals to the Court on decisions adverse to the constitutionality of state laws as well as on decisions sustaining them. Finally, in January, 1826, a bill enlarging the Court to ten judges passed the House by a vote of 132 to 27. In the Senate, Rowan of Kentucky moved an amendment requiring in all cases the concurrence of seven of the proposed ten judges. In a speech which was typical of current criticism of the Court he bitterly assailed the judges for the protection they had given the Bank—that “political juggernaut,” that “creature of the perverted corporate powers of the Federal Government”—and he described the Court itself as “placed above the control of the will of the people, in a state of disconnection with them, inaccessible to the charities and sympathies of human life.” The amendment failed, however, and in the end the bill itself was rejected.

Yet a proposition to swamp the Court which received the approval of four-fifths of the House of Representatives cannot be lightly dismissed as an aberration. Was it due to a fortuitous coalescence of local grievances, or was there a general underlying cause? That Marshall’s principles of constitutional law did not entirely accord with the political and economic life of the nation at this period must be admitted. The Chief Justice was at once behind his times and ahead of them. On the one hand, he was behind his times because he failed to appreciate adequately the fact that freedom was necessary to frontier communities in meeting their peculiar problems—a freedom which the doctrine of State Rights promised them—and so he had roused Kentucky’s wrath by the pedantic and, as the Court itself was presently forced to admit, unworkable decision in Green vs. Biddle. Then on the other hand, the nationalism of this period was of that negative kind which was better content to worship the Constitution than to make a really serviceable application of the national powers. After the War of 1812 the great and growing task which confronted the rapidly expanding nation was that of providing adequate transportation, and had the old federalism from which Marshall derived his doctrines been at the helm, this task would undoubtedly have been taken over by the National Government. By Madison’s veto of the Cumberland Road Bill, however, in 1816, this enterprise was handed over to the States; and they eagerly seized upon it after the opening of the Erie Canal in 1825 and the perception of the immense success of the venture. Later, to be sure, the panic of 1837 transferred the work of railroad and canal building to the hands of private capital but, after all, without altering greatly the constitutional problem. For with corporations to be chartered, endowed with the power of eminent domain, and adequately regulated, local policy obviously called for widest latitude.

Reformers are likely to count it a grievance that the courts do not trip over themselves in an endeavor to keep abreast with what is called “progress.” But the true function of courts is not to reform, but to maintain a definite status quo. The Constitution defined a status quo the fundamental principles of which Marshall considered sacred. At the same time, even his obstinate loyalty to “the intentions of the framers” was not impervious to facts nor unwilling to come to terms with them, and a growing number of his associates were ready to go considerably farther.

While the agitation in Congress against the Court was at its height, Marshall handed down his decision in Gibbons vs. Ogden, and shortly after, that in Osborn vs. United States Bank. ¹ In the latter case, which was initiated by the Bank, the plaintiff in error, who was Treasurer of the State of Ohio, brought forward Article XI of the Amendments to the Constitution as a bar to the action, but Marshall held that this Amendment did not prevent a state officer from being sued for acts done in excess of his rightful powers. He also reiterated and amplified the principles of M’Culloch vs. Maryland. Three years later he gave his opinions in Brown vs. Maryland and Ogden vs. Saunders. ² In the former Marshall’s opinion was dissented from by a single associate, but in the latter the Chief Justice found himself for the first and only time in his entire incumbency in the rôle of dissenter in a constitutional case. The decision of the majority, speaking through Justice Washington, laid down the principle that the obligation of a private executory contract cannot be said to be “impaired” in a constitutional sense by the adverse effect of legislative acts antedating the making of the contract; and thus the dangerous ambiguity of Sturges vs. Crowinshield was finally resolved in favor of the States.

In the course of the next few years the Court, speaking usually through the Chief Justice, decided several cases on principles favoring local interest, sometimes indeed curtailing the operation of previously established principles. For example, the Court held that, in the absence of specific legislation by Congress to the contrary, a State may erect a dam across navigable waters of the United States for local purposes ¹; that the mere grant of a charter to a corporation does not prevent the State from taxing such corporation on its franchises, notwithstanding that “the power to tax involves the power to destroy” ²; that the Federal Courts have no right to set a state enactment aside on the ground that it had divested vested rights, unless it had done so through impairing the obligation of contracts ³; that the first eight Amendments to the Constitution do not limit state power, but only Federal power 4; that decisions adverse to state laws must have the concurrence of a majority of the Court. 5

Despite all these concessions which he made to the rising spirit of the times, Marshall found his last years to be among the most trying of his chief justiceship. Jackson, who was now President, felt himself the chosen organ of “the People’s will” and was not disposed to regard as binding anybody’s interpretation of the Constitution except his own. The West and Southwest, the pocket boroughs of the new Administration, were now deep in land speculation and clamorous for financial expedients which the Constitution banned. John Taylor of Caroline had just finished his task of defining the principles of constitutional construction which were requisite to convert the Union into a league of States and had laid his work at the feet of Calhoun. Taylor was a candid man and frankly owned the historical difficulties in the way of carrying out his purpose; but Calhoun’s less scrupulous dialectic swept aside every obstacle that stood in the way of attributing to the States the completest sovereignty.

In Craig vs. Missouri (1830) ¹ the Court was confronted with a case in which a State had sought to evade the prohibition of the Constitution against the emission of bills of credit by establishing loan offices with authority to issue loan certificates intended to circulate generally in dimensions of fifty cents to ten dollars and to be receivable for taxes. A plainer violation of the Constitution would be difficult to imagine. Yet Marshall’s decision setting aside the act was followed by a renewed effort to procure the repeal of Section XXV of the Judiciary Act. The discussion of the proposal threw into interesting contrast two points of view. The opponents of this section insisted upon regarding constitutional cases as controversies between the United States and the States in their corporate capacities; its advocates, on the other hand, treated the section as an indispensable safeguard of private rights. In the end, the latter point of view prevailed: the bill to repeal, which had come up in the House, was rejected by a vote of 138 to 51, and of the latter number all but six came from Southern States, and more than half of them from natives of Virginia.

Meantime the Supreme Court had become involved in controversy with Georgia on account of a series of acts which that State had passed extending its jurisdiction over the Cherokee Indians in violation of the national treaties with this tribe. In Corn Tassel’s case, the appellant from the Georgia court to the United States Supreme Court was hanged in defiance of a writ of error from the Court. In Cherokee Nation vs. Georgia, the Court itself held that it had no jurisdiction. Finally, in 1832, in Worcester vs. Georgia, ¹ the Court was confronted squarely with the question of the validity of the Georgia acts. The State put in no appearance, the acts were pronounced void, and the decision went unenforced. When Jackson was asked what effort the Executive Department would make to back up the Court’s mandate, he is reported to have said: “John Marshall has made his decision; now let him enforce it.”

A few months later, in consequence of the Administration’s vigorous measures against nullification in South Carolina, things were temporarily wearing a brighter aspect. Yet that the fundamental elements of the situation had been thereby altered, Marshall did not believe. “To men who think as you and I do,” he wrote Story, toward the end of 1834, “the present is gloomy enough; and the future presents no cheering prospect. In the South … those who support the Executive do not support the Government. They sustain the personal power of the President, but labor incessantly to impair the legitimate powers of the Government. Those who oppose the rash and violent measures of the Executive … are generally the bitter enemies of Constitutional Government. Many of them are the avowed advocates of a league; and those who do not go the whole length, go a great part of the way. What can we hope for in such circumstances?”

Yet there was one respect in which the significance of Marshall’s achievement must have been as clear to himself as it was to his contemporaries. He had failed for the time being to establish his definition of national power, it is true, but he had made the Supreme Court one of the great political forces of the country. The very ferocity with which the pretensions of the Court were assailed in certain quarters was indirect proof of its power, but there was also direct testimony of a high order. In 1830 Alexis de Tocqueville, the French statesman, visited the United States just as the rough frontier democracy was coming into its own. Only through the Supreme Court, in his opinion, were the forces of renewal and growth thus liberated to be kept within the bounds set by existing institutions. “The peace, the prosperity, and the very existence of the Union,” he wrote, “are vested in the hands of the seven Federal judges. Without them the Constitution would be a dead letter: the Executive appeals to them for assistance against the encroachments of the legislative power; the Legislature demands their protection against the assaults of the Executive; they defend the Union from the disobedience of the States, the States from the exaggerated claims of the Union, the public interest against private interests and the conservative spirit of stability against the fickleness of the democracy.” The contrast between these observations and the disheartened words in which Jay declined renomination to the chief justiceship in 1801 gives perhaps a fair measure of Marshall’s accomplishment.

Of the implications of the accomplishment of the great Chief Justice for the political life of the country, let De Tocqueville speak again: “Scarcely any political question arises in the United States which is not resolved sooner, or later, into a judicial question. Hence all parties are obliged to borrow in their daily controversies the ideas, and even the language peculiar to judicial proceedings.… The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.”

In one respect, however, De Tocqueville erred. American “legalism,” that curious infusion of politics with jurisprudence, that mutual consultation of public opinion and established principles, which in the past has so characterized the course of discussion and legislation in America, is traceable to origins long antedating Marshall’s chief justiceship. On the other hand, there is no public career in American history which ever built so largely upon this pervasive trait of the national outlook as did Marshall’s, or which has contributed so much to render it effective in palpable institutions.

Among Friends And Neighbors

It is a circumstance of no little importance that the founder of American Constitutional Law was in tastes and habit of life a simple countryman. To the establishment of National Supremacy and the Sanctity of Contracts Marshall brought the support not only of his office and his command of the art of judicial reasoning but also the whole-souled democracy and unpretentiousness of the fields. And it must be borne in mind that Marshall was on view before his contemporaries as a private citizen rather more of the time, perhaps, than as Chief Justice. His official career was, in truth, a somewhat leisurely one. Until 1827 the term at Washington rarely lasted over six weeks and subsequently not over ten weeks. In the course of his thirty-four years on the Bench, the Court handed down opinions in over 1100 cases, which is probably about four times the number of opinions now handed down at a single term; and of this number Marshall spoke for the Court in about half the cases. Toward the middle of March, he left Washington for Richmond, and on the 22d of May opened court in his own circuit. Then, three weeks later, if the docket permitted, he went on to Raleigh to hold court there for a few days. The summers he usually spent on the estate which he inherited from his father at Fauquier, or else he went higher up into the mountains to escape malaria. But by the 22d of November at the latest he was back once more in Richmond for court, and at the end of December for a second brief term he again drove to Raleigh in his high-wheeled gig. With his return to Washington early in February he completed the round of his judicial year.

The entire lack of pageantry and circumstance which attended these journeyings of his is nowhere more gaily revealed than in the following letter to his wife, which is now published for the first time through the kindness of Mr. Beveridge:

Rawleigh, Jan.y 2d, 1803.

My dearest Polly

You will laugh at my vexation when you hear the various calamities that have befallen me. In the first place when I came to review my funds, I had the mortification to discover that I had lost 15 silver dollars out of my waist coat pocket. They had worn through the various mendings the pocket had sustained and sought their liberty in the sands of Carolina.

I determined not to vex myself with what could not be remedied & ordered Peter to take out my cloaths that I might dress for court when to my astonishment & grief after fumbling several minutes in the portmanteau, starting [sic] at vacancy, & sweating most profusely he turned to me with the doleful tidings that I had no pair of breeches. You may be sure this piece of intelligence was not very graciously received; however, after a little scolding, I determined to make the best of my situation & immediately set out to get a pair made.

I thought I should be a sans-culotte only one day & that for the residue of the term I might be well enough dressed for the appearance on the first day to be forgotten.

But, the greatest of evils, I found, was followed by still greater. Not a taylor in town could be prevailed on to work for me. They were all so busy that it was impossible to attend to my wants however pressing they might be, & I have the extreme mortification to pass the whole time without that important article of dress I have mentioned. I have no alleviation for this misfortune but the hope that I shall be enabled in four or five days to commence my journey homeward & that I shall have the pleasure of seeing you & our dear children in eight or nine days after this reaches you.

In the meantime, I flatter myself that you are well and happy.

Adieu my dearest Polly

I am your own affectionate,

J. Marshall.

Marshall erected his Richmond home, called “Shockoe Hill,” in 1793 on a plot of ground which he had purchased four years earlier. Here, as his eulogist has said, was “the scene of his real triumphs.” At an early date his wife became a nervous invalid, and his devotion to her brought out all the finest qualities of his sound and tender nature. “It is,” says Mr. Beveridge, “the most marked characteristic of his entire private life and is the one thing which differentiates him sharply from the most eminent men of that heroic but socially free-and-easy period.” From his association with his wife Marshall derived, moreover, an opinion of the sex “as the friends, the companions, and the equals of man” which may be said to have furnished one of his few points of sympathetic contact with American political radicalism in his later years. The satirist of woman, says Story, “found no sympathy in his bosom,” and “he was still farther above the commonplace flatteries by which frivolity seeks to administer aliment to personal vanity, or vice to make its approaches for baser purposes. He spoke to the sex when present, as he spoke of them when absent, in language of just appeal to their understandings, their tastes, and their duties.”

Marshall’s relations with his neighbors were the happiest possible. Every week, when his judicial duties permitted or the more “laborious relaxation” of directing his farm did not call him away, he attended the meetings of the Barbecue Club in a fine grove just outside the city, to indulge in his favorite diversion of quoits. The Club consisted of thirty of the most prominent men of Richmond, judges, lawyers, doctors, clergymen, and merchants. To quoits was added the inducement of an excellent repast of which roast pig was the pièce de résistance. Then followed a dessert of fruit and melons, while throughout a generous stock of porter, toddy, and of punch “from which water was carefully excluded,” was always available to relieve thirst. An entertaining account of a meeting of the Club at which Marshall and his friend Wickham were the caterers has been thus preserved for us:

At the table Marshall announced that at the last meeting two members had introduced politics, a forbidden subject, and had been fined a basket of champagne, and that this was now produced, as a warning to evil-doers; as the club seldom drank this article, they had no champagne glasses, and must drink it in tumblers. Those who played quoits retired after a while for a game. Most of the members had smooth, highly polished brass quoits. But Marshall’s were large, rough, heavy, and of iron, such as few of the members could throw well from hub to hub. Marshall himself threw them with great success and accuracy, and often “rang the meg.” On this occasion Marshall and the Rev. Mr. Blair led the two parties of players. Marshall played first, and rang the meg. Parson Blair did the same, and his quoit came down plumply on top of Marshall’s. There was uproarious applause, which drew out all the others from the dinner; and then came an animated controversy as to what should be the effect of this exploit. They all returned to the table, had another bottle of champagne, and listened to arguments, one from Marshall, pro se, and one from Wickham for Parson Blair. [Marshall’s] argument is a humorous companion piece to any one of his elaborate judicial opinions. He began by formulating the question, “Who is winner when the adversary quoits are on the meg at the same time?” He then stated the facts, and remarked that the question was one of the true construction and applications of the rules of the game. The first one ringing the meg has the advantage. No other can succeed who does not begin by displacing this first one. The parson, he willingly allowed, deserves to rise higher and higher in everybody’s esteem; but then he mustn’t do it by getting on another’s back in this fashion. That is more like leapfrog than quoits. Then, again, the legal maxim, Cujus est solum, ejus est usque ad cœlum—his own right as first occupant extends to the vault of heaven; no opponent can gain any advantage by squatting on his back. He must either bring a writ of ejectment, or drive him out vi et armis. And then, after further argument of the same sort, he asked judgment, and sat down amidst great applause.

Mr. Wickham then rose, and made an argument of a similar pattern. No rule, he said, requires an impossibility. Mr. Marshall’s quoit is twice as large as any other; and yet it flies from his arm like the iron ball at the Grecian games from the arm of Ajax. It is impossible for an ordinary quoit to move it. With much more of the same sort, he contended that it was a drawn game. After very animated voting, designed to keep up the uncertainty as long as possible, it was so decided. Another trial was had, and Marshall clearly won. ¹