John Marshall Read online

  With more than 300 clients, all together generating over £1,500 a year, Marshall became the state’s most prominent and wealthiest lawyer. Even College of William and Mary retained him as its attorney, and in the fall, after the convention, he invested some of his newfound wealth in two adjacent half-acre lots in Richmond, where he built a stately, two-and-one-half-story Federal-style brick home.

  Built in the upscale “Court End” district near the elegant new state Capitol and courthouse, Marshall’s house boasted nine rooms, including a paneled dining room where he began hosting monthly “lawyers’ dinners”—acclaimed stag affairs for his Richmond colleagues and any notables passing through town. Like most grand homes, small outbuildings stood behind the Marshall home to house the kitchen, laundry, stable, slave quarters, and a “necessary.”*

  John Marshall’s success practicing law allowed him to buy two adjacent, half-acre lots near the state capitol in Richmond and build this stately, two-and-one-half-story, Federal-style brick home. (LIBRARY OF CONGRESS)

  Although Marshall owned thousands of acres of raw land elsewhere in Virginia, he had lacked interest in farming and, therefore, owned only a handful of slaves—all of them household help. With Polly too fragile after two miscarriages and the deaths of three infant children,* Marshall gave his slaves relative autonomy—and, indeed, depended on them—to manage housekeeping and other household chores and tend to grocery shopping. Robin Spurlock, the slave Marshall had received as a wedding gift, proved so talented a manager that Marshall made him head slave, or de facto major domo. By choice, Robin stayed with Marshall the rest of his life, and other Marshall slaves remained in the family long after emancipation. “Robin Spurlock, who dressed after the same fashion as his master . . . regarded his master as the greatest man in the world and himself as the next,” according to one Marshall acquaintance. “He stood at the head of the colored aristocracy of Richmond.”2

  By 1800, Richmond had grown from a frontier town of about 1,200 people to the South’s most beautiful state capital, dominated by the classical Capitol on the distant hill. (FROM THE LIFE OF JOHN MARSHALL, BY ALBERT J. BEVERIDGE, VOL. I:184.)

  Marshall gave Spurlock relatively free rein to come and go and encouraged his assumption of leadership in Richmond’s black community. Spurlock, in turn, enlisted Marshall’s help in winning freedom for illegally enslaved African Indian children. Treaties between the Indians and both the Virginia and US governments had established a rule of maternal descent, designating interracial children of Indian mothers as Indians and, therefore, free—even if their fathers were slaves. Slave owners, however, routinely violated the treaty, and as Spurlock discovered such violations, he reported them to Marshall.

  Despite their political differences, Marshall’s friend James Monroe often joined him in courtroom forays to win freedom for Richmond’s illegally enslaved interracial men, women, and children. Shocked by rampant injustices to blacks, Marshall became a champion of equal justice under the law in Richmond. In one case he won a governor’s pardon for a free black woman sentenced to die for killing a white intruder who had broken into her home and assaulted her.

  Marshall’s fame spread far beyond Richmond after he convinced Patrick Henry to forgive and forget their differences at Virginia’s ratification convention and join as cocounsel in two dramatic cases that gripped the nation and won Marshall international acclaim.

  Commonwealth v. Randolph was the first case they handled together—a grisly tale of adultery and infanticide. Richard Randolph—one of the prominent Virginia Randolphs—went on trial for fathering a child by his wife’s unmarried sister Nancy, then suffocating the newborn and dumping it on a pile of broken shingles for slaves to burn some distance behind the mansion. Spattered blood stained the walls and floors throughout the house—Nancy’s room, the stairs, and elsewhere. Slaves said they had heard agonizing screams during the night.

  After Richard Randolph surrendered to the sheriff, John Marshall prepared the case for trial but let Patrick Henry, the nation’s most celebrated courtroom orator, examine witnesses. Together Henry and Marshall formed the most brilliant legal team in American history at the time, working so well in tandem that they became lifelong friends.

  “He was a learned lawyer,” Marshall spoke of Henry with reverence years later, “a most accurate thinker and a profound reasoner.”3

  Magistrates called seventeen witnesses, but Henry made quick work of them: none had actually seen a crime committed; none had seen a dead baby; there was no corpus delecti. None could even prove that Nancy had been pregnant.

  One claimed he saw Nancy in Randolph’s embrace, and Nancy’s aunt, Mary Cary Page, a notorious neighborhood gossip, said she had peeked through a crack in Nancy’s bedroom door while Nancy was undressing and thought, “Nancy’s belly seemed plump.”

  Henry nodded his head thoughtfully, then stared at the floor . . . and stared . . . and stared . . .

  “Which eye did you peek with?” he asked suddenly.

  As the courtroom exploded with laughter, Henry shook his head. “Great God! Deliver us from eavesdroppers,” he smiled.4

  After Henry ended his theatrics, Marshall closed with a straightforward argument, calling Randolph’s embrace a simple display of caring for an ailing sister-in-law. Her friends and relatives had all differed on whether she had even been pregnant, he pointed out, and he presented many possible causes for her weight gain.

  Without leaving their seats to consider their verdict, the sixteen magistrates agreed and dismissed the case.

  The courtroom erupted in cheers—for Randolph, of course, but also for what all agreed had been a brilliant performance by the two great lawyers. Decades later Nancy revealed she had miscarried a stillborn fetus, fathered not by her brother-in-law but a lover who had died before they could marry and legitimize the infant’s birth.

  In their second case the sensational Marshall-Henry team took on one of the most important cases either legal giant would ever handle—and the only case Marshall would ever personally plead before the US Supreme Court.

  Best known as the “British Debts Case,” Ware v. Hylton involved thousands of claims by British merchants for about £5 million in unpaid pre–Revolutionary War debts incurred by former American clients—plus £2 million in interest.

  Among the 30,000 American debtors, half were Virginians—10 percent of the state’s adult white male population. They included President George Washington, who owed British merchants £3,999 for prewar purchases—plus £1,600 interest—and Patrick Henry himself, who owed £972 plus interest. Most had assumed the Revolution would wipe out their debts to British creditors, but the Treaty of Paris of 1783 that ended the war specifically required American subjects to repay such debts and gave British merchants the right to sue in American courts to recover what Americans owed them.

  Virginia (and a few other states), however, had complicated matters during the Revolution by ordering Americans to deposit moneys they owed British creditors into the state treasury, thus allowing each state, in effect, to use British funds to pay for its wartime expenses. If the court ruled in favor of the British merchants, therefore, many Virginians faced paying their debts a second time—clearly unjust, but no more so than depriving British merchants of the moneys due them. The Constitution had made all treaties with foreign governments “the supreme law of the land,” however, and declared judges in every state “bound thereby,” thus giving British merchants an evident advantage.

  With thousands of Americans—and many Britons—anxiously awaiting the outcome, Henry moved into John Marshall’s home in Richmond, and on November 23, 1791, the two lawyers strode arm in arm to court to hear lawyers for British merchants present clear-cut, irrefutable arguments. Marshall was ready, however. He had fashioned a defense that Henry converted into his inimitable courtroom theater, rising slowly, clad in drab black homespun, contorting his face to that of a suffering martyr.

  Looking older than his fifty-five years, Henry apologized to
the court for his infirmities. He swayed a bit, as if losing his balance, then caught himself before uttering hoarsely, mournfully,

  I stand here, may it please your honors, to support, according to my power, that side of the question which respects the American debtor. I beg leave to beseech the patience of this honorable court; because the subject is very great and important.5

  He went on for three consecutive days, his voice growing stronger with each phrase until it boomed accusatory charges at the heart of the British Empire: Even if failure to pay the alleged debts had inadvertently violated the Treaty of Paris, Henry argued, Britain had made such a violation moot by its own gross violations of the Treaty. The British had seized American cargo ships on the high seas, impressed American seamen, and refused to evacuate forts in American territory along the northern and western frontiers. Britain had plundered American assets of far greater value than the debts British merchants were trying to collect.

  How, he then asked, would the British have treated Americans had England won the war? As spectators rose and cursed the British lawyers, he answered his own question:

  In the wars of the revolution which have taken place in that island, life, fortune, goods, debts, and everything were confiscated. . . . Every possible punishment has been inflicted on suffering humanity that it could endure.6

  In contrast to many of his cases, Henry relied on more than theatrics and oratory. He cited renowned British legal authorities who asserted that creditors had always risked forfeiture of debts incurred in revolutions. He then described revolutions in Britain in 1715 and 1745 to demonstrate that if the British government had defeated the Americans, “the most horrid forfeitures, confiscations, and attainders would have been pronounced against us.” Indeed, had the British caught Patrick Henry himself, they would have hung him without trial as a traitor, then drawn and quartered his lifeless body.

  “Would not our men have shared the fate of the people of Ireland?” he demanded. “What confiscations and punishments were inflicted in Scotland? The plains of Culloden and the neighboring gibbets would show you.”

  Had we been subdued, would not every right have been wrested from us? Hungry Germans, blood-thirsty Indians, and nations of another color would have been let loose upon us. Sir, if you had seen . . . the simple but tranquil felicity of helpless unoffending women and children, in little log huts on the frontiers . . . the objects of the most shocking barbarity . . . by British warfare and Indian butchery. . . . Would it not be absurd for us to save their debts, while they should burn, hang, and destroy?7

  With Christmas approaching in 1791, the court reserved decision and adjourned for the holidays. It would not issue a ruling until June 7, when it rejected the Marshall-Henry argument that a breach of a treaty by either side automatically nullifies the entire treaty.

  The court sustained their other arguments, however, awarding their client—and, by implication, all Virginia debtors—full credit for the amount he had paid into Virginia’s state treasury. It ruled that he now owed British creditors only the difference between that amount and the original debt.

  Virginians—and, indeed, all Americans—cheered the decision, which rescued some 30,000 American debtors from financial disaster. American and British legal scholars for years thereafter cited the Henry-Marshall case as an historic legal triumph that was both just and equitable to creditors and debtors.

  After a series of negotiations that followed the decision, the US government agreed to pay the British government £600,000 to settle the issue—a mere 12 percent of the original British claims of £4,930,000. In the end American debtors escaped without paying an extra penny from their collective pockets.

  Marshall’s courtroom victories added to his national and even international celebrity. He won election as Richmond’s representative to the Virginia House of Delegates, the governor appointed him colonel of the Richmond Regiment of the Virginia militia, and the Grand Lodge of Ancient Free and Accepted Masons of Virginia elevated him to deputy grand master. Political foes as well as friends embraced the fun-loving attorney, regularly inviting him to dinners and late nights of cards or billiards, but the hilarity and laughter of his life away from home contrasted sharply with the gloom that emanated from Polly’s sickroom. To his distress, the slightest sound—even a child’s barely audible whimper—provoked his wife’s tremors and tears.

  Marshall so enjoyed his outside social life that he decided to unite the friends he liked most in a new men’s social club—Richmond’s first. Variously called the Quoits Club, or Barbecue Club, it limited membership to thirty elected members, among them the city’s leading merchants, political leaders, and professional men—and three ex officio members, the governor, the city’s Episcopalian bishop, and its Presbyterian minister, John Buchanan. The club met every Saturday afternoon from May to November at Pastor Buchanan’s farm outside Richmond, where they feasted on barbecued pig, among other comestibles. Club members elected Marshall and attorney John Wickham to cater the meals during the first season because of their reputations as bons vivants.

  “Quoits was the game,” recalled one member, “and toddy, punch and mint julep to wash down a plain substantial dinner, without wines or desert. Among the most skillful in throwing the quoit was Judge Marshall,* even in advanced years, and it delighted his competitors as much as himself to see him ring the peg.”8 Drinking from tumblers, however, saw them consume so much that Pastor Buchanon warned, “Those who drink from tumblers on the table may become tumblers under the table.”9

  Marshall did not let quoits interfere with his responsibilities at home, though. As one colleague put it, Marshall was “exactly what a wife, a child, a brother, and a friend would desire.”10

  By then George Washington was well into his second year as the nation’s first President. He had spent much of his first year making appointments to the new government—110 in all. He tried to enlist the thirty-four-year-old hero of Monmouth, John Marshall:

  I have the pleasure to inform you that you are appointed [Attorney] of the District [of Virginia] and your Commission is enclosed. . . . The high importance of the Judicial System in our national government made it an indispensable duty to select such characters to fill the several offices in it as would discharge their respective trusts with honor to themselves and advantage to their country.11

  Although it was the highest honor of Marshall’s legal career, he astonished Washington by refusing.

  “I thank you, sir, very sincerely for the honor which I feel is done me,” Marshall wrote to his former commander-in-chief, “and I beg leave to declare that it is with real regret I decline accepting an office which has to me been rendered highly valuable by the hand which bestowed it.” Few ever dared reject a Washington request, let alone appointment, but Marshall said “sessions of the federal and state courts being at the same time in different places, an attendance in the one becomes incompatible with the duties of an attorney in the other.”12

  In fact, Marshall didn’t want the job. He had served as Virginia’s acting attorney general for a while and had disliked prosecuting every defendant according to the letter of the law—regardless of how justified the defendant was in violating the law or how unjust the law.

  But Marshall’s most important reason for rejecting the President’s appointment was Polly, who was pregnant for the sixth time, and their two surviving sons, Thomas, five, and Jacquelin Ambler, two, needed strong parental oversight that Polly, even at her strongest, was unable to provide. She had already miscarried twice, and their first daughter, Rebecca, had died after five days. Marshall needed to remain close to home.

  He had also just won election to Virginia’s General Assembly—a satisfying if undemanding job that required only a few weeks a year at the capitol in Richmond, a few steps from home. Making his life even simpler and more pleasant, the Assembly and court met in the same building, allowing him to attend legislative sessions, walk home for midday dinner, and return to appear at the bar in the afternoon.
A week after Marshall had rejected the President’s appointment, he took his oath as a member of Virginia’s General Assembly, and on November 24, 1789, Polly gave birth to a daughter, Mary Ann.

  It was Robin Spurlock, his head slave, who inspired one of the first laws Marshall sponsored in the Virginia Assembly, making it a crime to sell free persons as slaves. Passed by an impressive majority, the Marshall-Spurlock bill prevented enslavement of children of freeborn women fathered by enslaved fathers.*

  Another reason Marshall rejected Washington’s appointment was the continuing Hite v. Fairfax case, which was still making its way through Virginia’s court system. The outcome would determine the fate of the entire Marshall clan’s enormous land holdings in Virginia. He simply could not and would not allow personal political advancement divert his attention from that case and the interests of the rest of the Marshall family.

  Marshall’s rejection of a presidential appointment, however, annoyed Washington. The President had already suffered unexpected rebuffs by men who, like Marshall, had served him loyally during the Revolution and who, he hoped, would serve just as loyally in his new government. He was badly mistaken. Many of his wartime aides who acquiesced to his martial battlefield commands bristled at his often brusque personality in civilian life, and some who stayed to serve him did so only because of lust for power.

  Although his former artillery commander Henry Knox of Massachusetts agreed to be secretary at war, Philadelphia’s Robert Morris had turned down the post of treasury secretary, while New York’s John Jay refused appointment as secretary of state.