Chapter III: At the Bar

In 1780–81 Marshall was admitted to the bar and entered on the practice of law in Fauquier County. With his fine abilities, his high character, his family antecedents, and local surroundings in his native county, it is not surprising that his success was assured at once. He was spared the customary ordeal of climbing upward in his profession by the toilsome and rugged road of hard and patient labor. Such was the popular appreciation of his worth that, almost without effort, he secured at once a large clientage, which brought him early prominence and fame at the bar, and a consequently remunerative practice. In fact, his clear head and patient industry gave him peculiar qualifications for laboring in the chaos into which the jurisprudence of the State had been plunged by the war. But he was not permitted to pursue without interruption his professional fortunes in provincial courts. The difficulties of the times, especially the putting into safe and harmonious operation the machinery of the new government in the altered condition of affairs, urgently demanded in the public counsels the resources of the wisest heads and the efforts of the best men in the land. He was immediately chosen one of the delegates from Fauquier County to the legislature. It was certainly no small tribute to the character and ability of this young man just come to the bar, and not yet twenty-five years of age, that he should have been selected by the public suffrage to fill a position so conspicuous and responsible. Like Washington, he never sought official station nor public honors, but often shunned them, as we shall see. Nor was he ever a self-announced candidate for any office. All such positions held by him, military, political, and judicial, were given him by the unsolicited confidence of those whose duty it was to bestow them. In his case always “the place sought the man and not the man the place.” It is safe to say that, with the exception always of Washington, few of his countrymen, especially in succeeding times, can present a similar record. [1]

It may be supposed that, owing to his long service in the army and the frequent interruption of his law studies on this account, his legal lore could not have been, at this period, either profound or extensive. But what was said of the Virginians by an English historian, who lived among them more than one hundred and fifty years ago, was true especially of John Marshall, namely, “Being naturally of good parts, they neither require nor admire as much learning as they do in Britain.” [2]

Marshall rose rapidly at the bar. Once fairly launched in the career of practice, his extraordinary abilities did not fail to make a strong impression on those who witnessed their display. This early success he attributed with native modesty to the friendship of his old comrades in arms. Treated with base ingratitude by the country, the war-worn and poverty-stricken band of the soldiers of the Revolution stood all the more closely together. “They knew,” he would say, “that I felt their wrongs and sympathized in their sufferings and had partaken of their labors; and that I vindicated their claims upon their country with a warm and constant earnestness.” These veterans all spoke of him in terms of the liveliest praise. Especially the Revolutionary officers of the Virginia line, “now few and faint but fearless still,” seemed to idolize him, as an old friend and companion who enjoyed their unqualified confidence. They knew his mental qualities and his integrity, and they loved him for the goodness of his heart.

The close of the Revolutionary war was in many respects a fortunate period at which to begin active practice at the bar. So far as the mere amount of business was concerned, a great accession of litigation was the necessary result of the civil and social disruptions wrought by that struggle. The mutations which property had undergone amid the conflicts of a long war, outstanding debts and contracts, and the adjustment of old controversies, became fruitful sources of litigation, and cumbered the dockets of the courts. In the course of a speech in the Virginia Convention of 1788, defending and maintaining the necessity of a federal as well as a state judiciary, Mr. Marshall demanded:

“Does not every gentleman here know that the causes in our courts are more numerous than they can decide according to their present construction? Look at the dockets. You will find them crowded with suits, which the life of man will not see determined. If some of these suits be carried to other courts, will it be wrong? They will still have business enough.”

Further than this, the character of the questions arising, and the condition of the law itself, tended to call forth the highest energies of the profession. Everything seemed new, unsettled, and to be made over afresh. American jurisprudence was as yet unborn. Questions of novel character were constantly arising, questions to be settled not by authority, but by the light of reason and innate right, and with due reference to the changed condition of political and social affairs. Here the advocate was scarcely either aided or impeded by cases and precedents. In the investigation and argument of such causes he was obliged to rely chiefly on the unassisted powers of his own mind, and to reason from general principles and in the spirit of justice; he could find scant opportunity to adopt as guides the thoughts of others in a different field of investigation. Here the peculiar abilities of Marshall found an appropriate theatre for their employment. It was the legal habit of thought and the power of construction in sympathy with the spirit of English systems of law that were needed. This peculiar capacity belonged to Marshall in a rare degree; by the aid of it he afterward shaped the broad outlines of American constitutional law, doing a work more of creation than of learning, and therefore certainly of the highest order. [3]

This form of professional work was that which came natural to him. It so happened that the circumstances under which he came to the bar fostered and exercised the tendency. In a different period of judicial development, with different requirements, he would have occupied a less monumental position; but the need of the times and the qualifications of the man were in happy accord.


The system of jurisprudence of which the rules and principles had been laid down in the Virginia Constitution of 1776, with which Marshall was now becoming familiar, had doubtless a strong tendency, in the practice under it, to sharpen the intellect and beget in the bar habits of nice discrimination and close analysis in legal reasoning. The jurisdiction of the courts was wisely distributed among separate tribunals with a view to simplicity, certainty, and economy. Justices of the peace, having original but limited civil and criminal jurisdiction, were appointed by the governor on the nomination of the county courts. These magistrates formed, when assembled in monthly and quarterly sessions at their court-houses, the county courts, four members making a quorum in all civil, and five in all criminal, causes. These being selected from the gentry of the county were, almost without exception, men of property, of superior intelligence, and high character. They received no compensation for their services, beyond the chance of succession by seniority to the office of high sheriff of the county, a lucrative position of dignity and importance, which was fixed at the term of two years. The circuit and the superior courts of law were of wider jurisdiction, and had fixed pay for the judges. They exercised original jurisdiction in all civil cases, and appellate jurisdiction from the county courts on points of law in all criminal cases, except in the trial of slaves, in which the county courts were courts of oyer and terminer; all five of the members, however, had to concur in their judgments, otherwise the prisoner was entitled to a discharge. The decisions of the circuit courts were subject to appeal on points of law in criminal causes to the general court, an appellate tribunal of the last resort, composed of a majority of the circuit judges, who met annually at the seat of government to try such causes.

The chancery courts, whose jurisdiction was confined exclusively to equity, were held in certain districts of the State, and from their decrees appeals lay to the supreme court of appeals at Richmond, as the court of last resort.

This judicial system, thus briefly outlined, subject to such modifications as the legislature had, from time to time, enacted, prevailed in Virginia from the close of the Revolutionary war to the year 1829–30, a period of nearly fifty years, when a convention was called and a new constitution framed in the interests of progress and reform. In the judgment of many wise and considerate men in Virginia these departures in the several new constitutions, since enacted, from the wisely adjusted and nicely balanced system of our Revolutionary fathers in 1776, have not proved happy, nor promoted the public good.

This court system naturally tended to concentre the most important cases and the chief business of litigation in the new metropolis at Richmond, and thither accordingly the ablest provincial lawyers necessarily gravitated. For in consequence of the extent of territory to be traversed, and of the slow and expensive mode of travel at that day to reach the capital, the country lawyers seldom followed their causes to the appellate courts at Richmond. The result was that the more successful country practitioners soon saw the wisdom of enlarging their sphere of practice by transferring their offices to the metropolis. Thus it was that Marshall, after a practice of only two years at the bar of Fauquier and in the adjacent courts, having already established himself in a good business and acquired a reputation which was further enhanced by his able service in the legislature, removed his office to Richmond, where his increasing business and popularity placed him almost at once at the head of his profession.

It was during his service in the legislature that he was elected by that body a member of the state or executive council; and he was made also a general in the new organization of the state militia under the peace establishment.

At the metropolitan bar of his native State Mr. Marshall was brought into active competition with rivals of distinguished fame, a bar which boasted at that time the names of Patrick Henry, John Wickham, James Innes, Alexander Campbell, Benjamin Botts, and Edmund Randolph. He took rank at once with these as equals, and soon became known and recognized as chief among them. Yet there was nothing in his appearance, manners, or habits to attract attention or to conciliate the interests of the public. On the contrary, in the eyes of ordinary acquaintances, he seemed destitute of those attributes of person and manner which render men attractive and insure professional employment and preferment. We have some accounts, written at that early day, of his personal appearance and rustic manners, which are characteristic.

“He was one morning strolling through the streets of Richmond, attired in a plain linen round-about and shorts, with his hat under his arm, from which he was eating cherries, when he stopped in the porch of the Eagle Hotel, indulged in some little pleasantry with the landlord, and then passed on. Mr. P., a gentle man from the country then present, who had a case coming on before the court of appeals, was referred by the landlord to Marshall, as the best advocate for him to employ; but the careless, languid air of the young lawyer had so prejudiced Mr. P. that he refused to engage him. On entering court, Mr. P. was a second time referred by the clerk of the court to Mr. Marshall, and a second time he declined. At this moment entered Mr. V., a venerable-looking legal gentleman in a powdered wig and black coat, whose dignified appearance made such an impression on Mr. P. that he at once engaged him. In the first case which came on, Marshall and Mr. V. each addressed the court. The vast inferiority of his advocate was so apparent that, at the close of the case, Mr. P. introduced himself to young Marshall, frankly stated the prejudice which had caused him, in opposition to advice, to employ Mr. V., that he extremely regretted his error, but knew not how to remedy it, He had come into the city with one hundred dollars as his lawyer’s fee, and had but five left, which, if Marshall chose, he would cheerfully give him for assisting in the case. Marshall, pleased with the incident, accepted the offer not, however, without passing a sly joke at the omnipotence of a powdered wig and black coat.” [4]

The qualities of mind, more important than these matters of external appearance, which earned for Mr. Marshall his great reputation as a lawyer and an orator at the bar, are thus graphically delineated by the graceful pen of William Wirt, one of the forensic contemporaries of his later career:

“This extraordinary man,” says Mr. Wirt, “without the aid of fancy, without the advantages of person, voice, attitude, gesture, or any of the ornaments of an orator, deserves to be considered as one of the most eloquent men in the world; if eloquence may be said to consist in the power of seizing the attention with irresistible force, and never permitting it to elude the grasp until the hearer has received the conviction which the speaker intends. His voice is dry and hard; his attitude, in his most effective orations, was often extremely awkward; while all his gesture proceeded from his right arm, and consisted merely in a perpendicular swing of it from about the elevation of his head to the bar, behind which he was accustomed to stand. As to fancy, if she hold a seat in his mind at all, his gigantic genius tramples with disdain on all her flower-decked plats and blooming parterres. How then, you will ask, how is it possible that such a man can hold the attention of his audience enchained through even a speech of ordinary length? I will tell you. He possesses one original and almost supernatural faculty; the faculty of developing a subject by a single glance of his mind and detecting at once the very point on which every controversy depends. No matter what the question; though ten times more knotty than the gnarled oak, the lightning of heaven is not more rapid or more resistless than his astonishing penetration. Nor does the exercise of it seem to cost him an effort. On the contrary, it is as easy as vision. I am persuaded that his eyes do not fly over a landscape and take in its various objects with more promptitude and facility than his mind embraces and analyzes the most complex subject.

“Possessing, while at the bar, this intellectual elevation, which enabled him to look down and comprehend the whole ground at once, he determined immediately and without difficulty on which side the question might be most advantageously approached and assailed. In a bad cause his art consisted in laying his premises so remotely from the point directly in debate, or else in terms so general and so specious, that the hearer, seeing no consequence which could be drawn from them, was just as willing to admit them as not; but, his premises once admitted, the demonstration, however distant, followed as certainly, as cogently, as inevitably, as any demonstration in Euclid. All his eloquence consists in the apparently deep self-conviction and emphatic earnestness of his manner; the correspondent simplicity and energy of his style; the close and logical connection of his thoughts; and the easy gradations by which he opens his lights on the attentive minds of his hearers. The audience are never permitted to pause for a moment. There is no stopping to weave garlands of flowers, to hang in festoons around a favorite argument. On the contrary, every sentence is progressive; every idea sheds new light on the subject; the listener is kept perpetually in that sweetly pleasurable vibration with which the mind of man always receives new truths; the dawn advances with easy but unremitting pace; the subject opens gradually on the view; until, rising in high relief, in all its native colors and proportions, the argument is consummated by the conviction of the delighted hearer.” [5]

It is impracticable, within the limits of this work, to cite the particular causes in which Marshall appeared at the bar at this period of his career; but there was one cause celebre, the argument of which won for him such extensive renown that its fame spread throughout the Union. It was the case of Ware v. Hilton, familiarly known to the profession as involving the British debt question, a question which, arising in a multitude of cases in all the States at this time, was causing extremely bitter and excited controversy. It was tried in the Circuit Court of the United States at Richmond, before Chief Justice Jay, Judge Iredell of the United States Circuit Court, and Judge Griffin of the United States District Court. Patrick Henry, John Marshall, Alexander Campbell, and James Innes, attorney-general of Virginia, appeared for the American debtors; and Andrew Roland, John Wickham, Stark, and Baker were of counsel for the English creditors. Attracted by the eminence of the counsel, as well as the large interests affected by the decision of the court, an intelligent and expectant audience were brought together in the court-room. A distinguished English lady, the Countess of Huntingdon, on her travels in this country, had tarried in Richmond and was present during the trial. After hearing the several speakers, she remarked that “if any one of them had spoken in Westminster Hall, he would have been honored with a peerage.”

In this trial Patrick Henry made one of the greatest efforts of his life. Realizing the ability of those with whom he had to cope, he made unusual preparation, and is said to have shut himself up in his office for three days without seeing even a member of his family, his food being handed in to him by a servant. His argument, which lasted three days, so injured his voice that it never fully recovered its strength.

It seems well worth while to quote at some length from the report of Marshall’s argument, both because of the historical importance of the question at issue and because it will furnish a striking, though inadequate, indication of his habits of thought and manner of reasoning. The point was, whether the act of Virginia, passed during the war, providing that Americans in debt to British creditors might be absolved from their indebtedness by paying the amount into the state treasury, was a bar to the recovery of debts so paid, notwithstanding that the treaty of 1783 provided that creditors on either side should meet with no lawful impediment to the recovery of the full value, in sterling money, of all subsisting bona fide debts theretofore contracted.

“The case resolves itself,” said Mr. Marshall, “into two general propositions. First, that the act of Assembly of Virginia is a bar to the recovery of the debt, independent of the treaty. Secondly, that the treaty does not remove the bar.

“That the act of Assembly of Virginia is a bar to the recovery of the debt introduces two subjects for consideration:

“First, whether the legislature had power to extinguish the debt? Secondly, whether the legislature had exercised that power?

“First. It has been conceded that independent nations have in general the right of confiscation, and that Virginia, at the time of passing her law, was an independent nation. But it is contended that, from the peculiar circumstances of the war, the citizens of each of the contending nations having been members of the same government, the general right of confiscation did not apply, and ought not to be exercised. It is not, however, necessary for the defendant in error to show a parallel case in history, since it is incumbent on those who wish to impair the sovereignty of Virginia to establish on principle or precedent the justice of their exception. That State being engaged in a war necessarily possessed the powers of war; and confiscation is one of those powers, weakening the party against whom it is employed and strengthening the party that employs it. War, indeed, is a state of force, and no tribunal can decide between the belligerent powers. But did not Virginia hazard as much by the war as if she had never been a member of the British empire? Did she not hazard more, from the very circumstance of its being a civil war? It will be allowed that nations have equal powers; and that America, in her own tribunals at least, must, from the 4th of July, 1776, be considered as independent a nation as Great Britain. Then what would have been the situation of American property had Great Britain been triumphant in the conflict? Sequestration, confiscation, and proscription would have followed in the train of that event; and why should the confiscation of British property be deemed less just in the event of the American triumph? The rights of war clearly exist between members of the same empire engaged in a civil war.”

“But, suppose a suit had been brought during the war by a British subject against an American citizen, it could not have been supported; and if there was a power to suspend a recovery, there must have been a power to extinguish the debt. They are, indeed, portions of the same power, emanating from the same source. The legislative authority of any country can only be restrained by its own municipal constitution. This is a principle that springs from the very nature of society; and the judicial authority can have no right to question the validity of a law, unless such a jurisdiction is expressly given by the Constitution. It is not necessary to inquire how the judicial authority should act if the legislature were evidently to violate any of the laws of God; but property is the creature of civil society and subject, in all respects, to the disposition and control of civil institutions… .”

“But it is now to be considered, whether, if the legislature of Virginia had the power of confiscation, they have exercised it? The third section of the act of Assembly discharges the debtor; and on the plain import of the term it may be asked, if he is discharged how can he remain charged? The expression is, ‘he shall be discharged from the debt,’ and yet it is contended he shall remain liable for the debt. Suppose that the law had said that the debtor should be discharged from the commonwealth, but not from his creditor, would not the legislature have betrayed the extremest folly in such a proposition? And what man in his senses would have paid a farthing into the treasury under such a law? Yet, in violation of the expressions of the act, this is the construction which is now attempted.”

“It is likewise contended that the act of Assembly does not amount to a confiscation of the debts paid into the treasury; and that the legislature had no power, as between creditors and debtors, to make a substitution or commutation in the mode of payment. But what is a confiscation? The substance and not the form is to be regarded. The State had a right either to make the confiscation absolute or to modify it, as she pleased. If she had ordered the debtor to pay the money into the treasury, to be applied to public uses, would it not have been, in the eye of reason, a perfect confiscation? She had thought proper, however, only to authorize the payment, to exonerate the debtor from his creditor, and to retain the money in the treasury subject to her own discretion as to its future appropriation. As far as the arrangement has been made, it is confiscatory in its nature, and must be binding on the parties, though, in the exercise of her discretion, the State might choose to restore the whole or any part of the money to the original creditor. Nor is it sufficient to say that the payment was voluntary in order to defeat the confiscation. A law is the expression of the public will, which, when expressed, is not the less obligatory because it imposes no penalty….”

“Having thus, then, established that at the time of entering into the treaty of 1783, the defendant owed nothing to the plaintiff, it is next to be inquired whether that treaty revived the debt in favor of the plaintiff, and removed the bar to a recovery, which the law of Virginia had interposed? The words of the fourth article of the treaty are, that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted. Now, it may be asked, who are creditors? There cannot be a creditor where there is not a debt; and British debts were extinguished by the act of confiscation. The articles, therefore, must be construed with reference to those creditors who had bona fide debts subsisting, in legal force, at the time of making the treaty; and the word recovery can have no effect to create a debt, where none previously existed. Without discussing the power of Congress to take away a vested right by treaty, the fair and rational construction of the instrument itself is sufficient for the defendant’s cause. The words ought surely to be very plain that shall work so evident a hardship as to compel a man to pay a debt which he had before extinguished. The treaty itself does not point out any particular description of persons who were to be deemed debtors, and it must be expounded in relation to the existing state of things.”

“It is not true that the fourth article can have no meaning, unless it applies to cases like the present. For instance, there was a law of Virginia which prohibited the recovery of British debts that had not been paid into the treasury. These were bona fide subsisting debts; and the prohibition was a legal impediment to the recovery, which the treaty was intended to remove. So likewise in several other States laws have been passed authorizing a discharge of British debts in paper money, or by a tender of property at a valuation, and the treaty was calculated to guard against such impediments to the recovery of the sterling value of those debts. It appears, therefore, that, at the time of making the treaty, the state of things was such that Virginia had exercised her sovereign right of confiscation, and had actually received the money from the debtors to the British. If debts thus paid were within the scope of the fourth article, those who framed the article knew of the payment; and upon every principle of equity and law it ought to be presumed that the recovery, which they contemplated, was intended against the receiving State, not against the paying debtor. Virginia possessing the right of compelling a payment for her own use, the payment to her, upon her requisition, ought to be considered as a payment to the attorney or agent of the British creditor. Nor is such a substitution a novelty in legal proceedings; a foreign attachment is founded upon the same principle… .”

“This act of Virginia must have been known to the American and British commissioners; and therefore cannot be repealed without plain and explicit expressions directed to that object. Besides, the public faith ought to be preserved. The public faith was plighted by the act of Virginia; and, as a revival of the debt in question would be a shameful violation of the faith of the State to her own citizens, the treaty should receive any possible interpretation to avoid so dishonorable and so pernicious a consequence. It is evident that the power of the government to take away a vested right was questionable in the minds of the American commissioners, since they would not exercise that power in restoring confiscated real estate; and confiscated debts or other personal estate must come within the same rule.”

William Wirt, in contrasting the powers of John Marshall and Alexander Campbell, writes to a friend in the following terms:

“From what I have heard of Campbell, I believe that, for mere eloquence, his equal has never been seen in the United States. He and the future chief justice went to Philadelphia to argue a certain cause somewhere about 1795 or 1796. They were opposed by Hamilton, Lewis, and others. Campbell played off his Apollonian airs; but they were lost. Marshall spoke, as he always does, to the judgment merely, and for the simple purpose of convincing. Marshall was justly pronounced one of the greatest men of the country. He was followed by crowds, looked upon and courted with every evidence of admiration and respect for the great powers of his mind. Campbell was neglected and slighted, and came home in disgust. Marshall’s maxim seems always to have been, ‘Aim exclusively at strength’; and from his eminent success I say, if I had my life to go over again, I would practice on his maxim, with the most rigorous severity, until the character of my mind was established.” [6]

Any abstract of an argument by a mind so analytical as Marshall’s would present an inadequate picture of its power. The most that an historian can hope to effect by any statement of it is to show his habit of resolving every proposition he intended to maintain or to attack into its original elements, and by that rigid analysis to develop its strength or to demonstrate its weakness. This is certainly the simplest, the most direct, and the most successful style of reasoning at the bar. His argument in Ware v. Hilton happily illustrates this mode, which the French language expresses better than our own, by the word approfondir, “to go to the bottom of.” He was thus accustomed to reduce his arguments to one strong point, which he made the pivot of the controversy, and around which he made all inferior considerations to revolve. Although the final decision of this case was adverse to him, the argument secured him great reputation and widely enlarged the sphere of his practice, which, for several years before his partial withdrawal from the bar in consequence of other and higher employments, exceeded that of any other lawyer in Virginia.

So great and widespread was the fame of the bar of Richmond at this time, that it attracted the presence and attention of travelers and foreigners. In a book of travels in the United States, by one of these distinguished visitors, the Duke de Liancourt, a French peer, we get the impression made upon an intelligent foreign observer of men and manners in America at that period. Speaking of Edmund Randolph, the ex-secretary of state, the duke says: “He has a great practice, and stands in that respect nearly on a par with Mr. J. Marshall, the most esteemed and celebrated counselor of this town. The profession of a lawyer is here, as in every other part of America, one of the most profitable; but though the employment is here more constant than in Carolina, the practitioner’s emoluments are very far from being equally considerable. Mr. Marshall does not, from his practice, derive above four or five thousand dollars per annum, and not even that sum every year.” After a more familiar acquaintance with the public men at the capital of Virginia, the same writer says:

“Mr. J. Marshall, conspicuously eminent as a professor of the law, is beyond all doubt one of those who rank highest in the public opinion at Richmond. He is what is called a Federalist, and perhaps, at times, somewhat warm in support of his opinions, but never exceeding the bounds of propriety, which a man of his goodness and prudence and knowledge is incapable of transgressing. He may be considered as a distinguished character in the United States. His political enemies allow him to possess great talents, but accuse him of ambition. I know not whether the charge be well or ill grounded, or whether that ambition might ever be able to impel him to a dereliction of his principles, conduct of which I am inclined to disbelieve the possibility on his part. He has already refused several employments under the general government, preferring the income derived from his professional labors (which is more than sufficient for his moderate system of economy) together with a life of tranquil ease in the midst of his family and his friends. Even by his friends he is taxed with some little propensity to indolence, but even if this reproach were well founded he nevertheless displays great superiority in his profession when he applies his mind to business.”

On January 3, 1783, Marshall was married to Mary Willis Ambler, a daughter of Jacqueline Ambler, then treasurer of Virginia. On the mother’s side she was a descendant of the La Roche Jacquelines of France. He had been attached to this lady before he left the army, but they were not married until about the time of his taking up his residence in Richmond. It proved to be a union which constituted, as he declares, the chief happiness of his life, and which endured in uninterrupted affection and confidence for a period of more than fifty years.

  1. KCW: Magruder overstates here. At Washington’s urging, Marshall ran for Congress in 1799. He was reluctant to do so, but the ultimate choice to run was his. Return to text.
  2. The Present State of Virginia, by Hugh Jones, A. M., Chaplain to the Honorable Assembly and lately Minister of Jamestown in Virginia. Return to text.
  3. KCW: Here, too, Magruder exaggerates. For a helpful corrective, see Chapter 2 of Hobson, The Great Chief JusticeReturn to text.
  4. Howe’s Historical Collections, p. 266. Return to text.
  5. The British Spy, pp. 178–181. Return to text.
  6. Kennedy’s Wirt, ii, 83. Return to text.