Chapter VI: Return to the Bar (1788-1797)

After his service in the convention Mr. Marshall again resolved to retire from public life and devote himself to his law business; a course now rendered more necessary by his slender fortune and growing family. But again he was overruled by the earnest appeals of his neighbors to represent them in the ensuing legislature. It had now become manifest that, notwithstanding the adoption of the United States Constitution, the large minority opposed to it were still very active and formidable in their hostility, and were resolved to insure an anti-federal ascendency in that body. Some of them were willing even to embarrass the new government by any means that might seem likely to defeat its success. Under these circumstances and urged by his constituency, Marshall felt obliged to forego his intended retirement, and thereupon so great were his popularity and influence that he was again triumphantly elected, notwithstanding the fact that an anti-federal majority in the county was known to be against him. He held the position until the spring of 1791.

In the first session of the General Assembly after the adoption of the Constitution, he found his party in a minority. The opposition had secured the ascendancy in that body and elected, as the first senators to Congress from Virginia, Mr. Grayson and Mr. Richard Henry Lee, both of whom had opposed the Constitution, in preference to Mr. Madison and Mr. Pendleton, who had so warmly supported it. Such was the virulence of party spirit even at that early day that, notwithstanding the overwhelming personal popularity of Washington, elected without opposition the first President of the United States, all the leading measures of his administration were warmly debated and criticized by the Virginia legislature with a watchful jealousy.

In so excited a state of popular feeling, Marshall’s triumph was a very remarkable instance at once of the magnanimity of many anti-Federalists and of his high repute and prestige. But such honors were not so rare in those days as they have since become; similar notable instances, occurring about the same time, will be recalled. The truth is that the mass of the people were singularly fair-minded, and anxious to work out for the best the momentous problem before them. Their behavior throughout this crisis was admirably liberal and temperate.

Marshall cherished the highest confidence in the wisdom and patriotism of Washington, and gave his earnest support to all those measures of the national administration which he could approve, although they provoked the animadversion of those who professed to see the horrid Gorgon of consolidation in every measure proposed as a remedy for existing disorders. In the halls of the legislature of Virginia these questions were debated with freedom, earnestness, and ability. In these discussions Mr. Marshall participated with even more than his usual power, defending the administration of Washington with great force of argument, but it is mortifying to reflect with what little effect. The current of party feeling proved too mighty to be resisted. It was an anomalous condition of things that in Virginia at that time Washington, who should have been the most honored and beloved of her sons and benefactors, was opposed in almost every important measure of his administration. The State seemed to set the example in opposition, and to lead the way in disaffection.

Fortunately this unwelcome posture of affairs at last gave Mr. Marshall his long-coveted opportunity to retire from public life and devote himself without reserve to the practice of his profession. In 1792 he positively declined a reelection to the legislature, and for the succeeding three years devoted himself with energy to his professional duty. The location of his office in Richmond, where the legislature met annually, had enabled him to preserve, in a great degree, his practice in the courts whenever he was not occupied with his legislative duties. Now that he could again give his undivided attention to the law, his business rapidly increased and became handsomely remunerative. It is said that he was employed in nearly every important case in the state and federal courts.

The system of practice was very favorable to the growth and success of eminent counsel at the metropolitan bar. As already stated, it seldom happened that provincial lawyers, however competent and able, owing to the distance, delay, and expense of travel, followed their cases into the appellate courts, which held their sessions in Richmond. Clients who appealed their causes had to resort to counsel in that city, and, armed with a copy of the record and a retaining fee of not less than one hundred dollars, they sought the advice of those eminent lawyers who practiced in the courts of appeal.

Mr. Marshall was now so well known throughout the commonwealth, and so highly appreciated in his profession, that he commanded the largest share of this practice. The volumes of Call’s and Washington’s Reports of Causes argued at that early period in the Court of Appeals attest the number and importance of the cases in which he appeared as counsel. This, of necessity, extended his professional correspondence with his brethren of the bar throughout the State. Some of these letters from him have survived the lapse of time, and furnish occasional glimpses of his friendly geniality and the fashion of his wit. For example, here is an extract from one to his friend Judge Archibald Stuart:

“I cannot appear for Donaghoe. I do not decline his business from any objection to his bank. To that I should like very well to have free access, and would certainly discount from it as largely as he would permit; but I am already fixed by Rankin, and as those who are once in the bank do not, I am told, readily get out again, I despair of being ever able to touch the guineas of Donaghoe.

“Shall we never see you again in Richmond? I was very much rejoiced when I heard that you were happily married, but if that amounts to a ne exeat, which is to confine you entirely to your side of the mountain, I shall be selfish enough to regret your good fortune, and almost to wish you had found some little crooked rib among the fish and oysters which would once a year drag you into this part of our terraqueous globe. You have forgotten, I believe, the solemn compact we made to take a journey to Philadelphia together this winter, and superintend for a while the proceedings of Congress. I wish very much to see you. I want to observe how much honester men you and I are [than] half one’s acquaintance. Seriously, there appears to me every day to be more folly, envy, malice, and damned rascality in the world than there was the day before; and I do verily begin to think that plain, downright honesty and unintriguing integrity will be kicked out of doors.

“We fear, and not without reason, a war. The man does not live who wishes for peace more than I do, but the outrages committed upon us are beyond human bearing. Farewell. Pray Heaven we may weather the storm. Yours,


With the known abilities and the avowed political opinions of Mr. Marshall, it was almost impossible for him to withdraw himself entirely from public life. The foreign policy of Washington was not less warmly attacked than his domestic. A fierce and bitter war was pending between France and England, and strong efforts were made by each to draw the new government of the United States into the strife, and to throw its weight into their own scale. Threats were employed by each side to effect this purpose, and France resorted also to blandishments and intrigues. Thomas Jefferson, although the secretary of state in Washington’s cabinet, already was, or soon became, the acknowledged leader of the anti-federal party. He hated England, and opposed the idea of an Anglican alliance, while he more furtively but warmly affiliated with France. Early in the year 1793, the French Directory dispatched as minister to the United States the famous M. Genet, who landed in Charleston, South Carolina, and, before presenting his credentials to Washington, proceeded at once, with almost incredible presumption, to issue letters of marque and reprisal against British commerce, to fill up officers’ blank commissions which he had brought out with him from France, and to dispatch privateers to prey upon British ships at sea, so that the French warship in which he had made the voyage over had actually captured prizes in American waters before the envoy had had his audience of reception by the President. He remained long in Charleston, and seemed purposely to delay his journey to the seat of government in order to give time for the seeds of sedition, which he was industriously sowing, to germinate, and to commit the people so thoroughly in advance of any governmental action that it would be found impracticable to avoid precipitating hostilities with England. In this the Frenchman counted largely on the feebleness of the administration, and on the strength of the opposition to it. These opponents formed a strong Gallican party, with which it was known that the secretary of state was in sympathy and affiliation.

Genet at length, after much delay, made his slow progress northward, and, arriving at Philadelphia, received something of an ovation from the admiring and exultant citizens who sympathized in his mission, and who seemed to find little to condemn in his unparalleled and audacious conduct toward the national government. He was honored with a civic banquet in that city, on which occasion the guests, with wild enthusiasm, sang the “Marseillaise,” wore the red liberty cap of French republicanism, and greeted each other by the revolutionary title of “citizen.”

Mr. Jefferson, however, had too much sagacity to commit himself to such a policy, or to justify the proceedings of the new minister. His letters in remonstrance against M. Genet’s conduct were distinct and emphatic enough to protect their author from the charge of complicity in the seditious and mischievous proceedings of the French emissary. But the acute reader could read between the lines that the American secretary of state was not devoid of sympathy with the wishes and policy of France, though irritated and indignant at the conduct of the French envoy. From the beginning of his mission this messenger of discord suffered scarcely a day to pass without some new act of aggression, some fresh breach of international law, culminating at length in the arrogance of threatening President Washington that he, foreigner as he was, himself would publicly appeal from the President to the American people, and would respect the expressions and doings of the executive only when the representatives of the people should have confirmed them. This outrage, and the utter and disgraceful violation of the ordinary courtesies and rights of international intercourse by this French Catiline, induced Washington to demand his immediate recall. This demand was complied with, and thus the obnoxious intruder was banished from the country. The proclamation of neutrality by Washington, in which Mr. Jefferson, as a member of the cabinet, could not avoid concurring, speedily followed.

It challenges our surprise, at this day, that a measure so obviously wise and right as this proclamation of neutrality, and so essential to the vindication of our national dignity and character, should have inflamed anew the opposition to the administration of Washington and increased the animosity of that party; yet such was the case. In public meetings, in legislative proceedings, and in popular discussions, the course of the administration was strongly condemned. It did not accord with Marshall’s nature or sense of duty to stand by and tamely submit to such gross injustice to the President and to the country. Acting on what he believed to be just and right and in the best interests of the people, he gave to this and kindred measures of Washington’s cabinet his earnest and unwavering support, and readily united with his political friends in the call of a meeting of the citizens of Richmond to consider the state of affairs. Here he offered resolutions approving the President’s course, and advocated them in a speech of unusual ability. They were passed by a considerable majority. But his success on this occasion, honorable as it was to himself and gratifying to his friends, was purchased at the usual price of a more vehement and unsparing hostility than ever on the part of his political opponents. Defeated by him in the argument, they now began to assail him with bitter personal reproaches, seeking to undermine his influence and public character by denouncing him as an aristocrat, attached to the British Constitution and an enemy to the republican form of government. These unworthy assaults, however, did him little harm. In Richmond, where his purity of character and manner of life were so well known, the ungenerous attacks recoiled on their authors. It was of little use to tell those who knew him that he was a British aristocrat; but the charges traveled, of course, far beyond the circle of his neighbors.

Nor were these feelings of jealousy mitigated by his fearless defense, soon after, of Jay’s treaty with England, when that unpopular document came before the United States Senate for ratification. At a public meeting of its opponents, in the city of Richmond, over which the venerable Chancellor Wythe presided, resolutions were adopted denouncing it as insulting to the dignity, injurious to the interest, dangerous to the security, and repugnant to the Constitution of the United States. But at a subsequent meeting of the citizens Mr. Marshall offered resolutions of a contrary character, and supported them in an able speech. Besides the expediency of the treaty, its constitutionality also was assailed on the ground that, as the Constitution bestowed on Congress the power to “regulate commerce,” the executive could not have the right to negotiate a commercial treaty. Marshall addressed himself particularly to this position, and so completely overturned it that it was never urged again in Virginia.

This argument brought Mr. Marshall great reputation, and first made his name familiar throughout the country as an expounder of the constitutional powers of the government. Visiting Philadelphia, a few months after, to argue the British debt case on appeal to the Supreme Court, he became an object of marked attention.

“I then became acquainted,” he says in a letter to a friend, “with Mr. Cabot, Mr. Ames, Mr. Dexter, and Mr. Sedgwick of Massachusetts, Mr. Wadsworth of Connecticut, and Mr. King of New York. I was delighted with these gentlemen. The particular subject [the British treaty] which introduced me to their notice was, at that time, so interesting, and a Virginian with any sort of reputation who supported the measures of government was such a rara avis, that I was received by them all with a degree of kindness which I had not anticipated. I was particularly intimate with Mr. Ames, and could scarcely gain credit with him, when I assured him that the appropriations [to carry out the treaty] would be seriously opposed in Congress. [1]

In the spring of 1795, when it became apparent that all these questions would come up for consideration in the state legislature, and that General Washington’s administration would be severely assailed by an unrelenting opposition, Mr. Marshall’s friends, anxious to avail themselves of his great services in that crisis, again forced him into a seat in the General Assembly. The circumstances were peculiar, and very flattering to him. Party spirit ran high, and so close was the division that it seemed doubtful whether the regular candidate of the Federalists, an intimate personal friend of Mr. Marshall, could be elected. Accordingly a poll was opened for Marshall on the very day of election, while he was engaged in one of the courts, and notwithstanding his resistance and his declaration that his feelings and honor were alike engaged for his friend, he was chosen.

  1. Story’s Discourse, p. 40. Return to text.