The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788

Mr. Wythe, the professor of law, was the life of the little institution in this ebbing period of war-time. He established "a Moot Court, held monthly or oftener … Mr. Wythe & the other professors sit as Judges. Our Audience consists of the most respectable of the Citizens, before whom we plead our Causes, given out by Mr. Wythe Lawyer like I assure you." The law professor also "form'd us into a Legislative Body, Consisting of about 40 members." Wythe constituted himself Speaker of these seedling lawmakers and took "all possible pains to instruct us in the Rules of Parliament." These nascent Solons of old William and Mary drew original bills, revised existing laws, debated, amended, and went through all the performances of a legislative body.514

The parent chapter of the Phi Beta Kappa Society had been instituted at the college; and to this Marshall was immediately elected. "At a meeting of the Society the 18 of May, 1780, Capt. John Marshall being recommended as a gentleman who would make a worthy member of this Society was balloted for & received."515 This is an important date; for it fixes with reasonable certainty the time of Marshall's entrance at William and Mary. He was probably the oldest of all the students; his army service made him, by far, the most interesting and notable; his extraordinary social qualities never failed to render him popular. It is, therefore, certain that he was made a member of Phi Beta Kappa without much delay. He probably entered college about May 1.516

At once we find the new member appointed on the society's debating team. Two students were selected to "declaim" the question and two to "argue" it.

"Mr. Cabell & Mr. Peyton Short appointed to declaim the Question whether any form of government is more favorable to our new virtue than the Commonwealth.

"Mr. Joseph Cabell and Mr. Marshall to argue the same. An adjournment. William Short President.

"At a meeting in course Saturday June ye 3rd, 1780, Mr. President leaving ye chair with Mr. Fitzhugh to ye same. Mr. Wm Cabell according to order delivered his declamation on ye question given out. Mr. Peyton Short, being unprepared, was silent on ye occasion. Mr. Marshall, a gentleman not immediately interested, argued ye Question."517

But it was not debating on which John Marshall was intent, nor any other college duties. He had hard work, it appears, to keep his mind on the learned words that fell from the lips of Mr. Wythe; for on the inside cover and opposite page of the book in which he made notes of Wythe's law lectures,518 we find in John Marshall's handwriting the words, "Miss Maria Ambler"; and again "Miss M. Ambler"; and still again, this time upside down, "Miss M. Ambler – J. Marshall"; and "John Marshall, Miss Polly Am."; and "John, Maria"; and "John Marshall, Miss Maria"; and "Molly Ambler"; and below this once more, "Miss M. Ambler"; on the corner of the page where the notes of the first lecture are recorded is again inscribed in large, bold letters the magic word, "Ambler."519

Jacquelin Ambler had been made Treasurer of State, and, early in June, 1780, the family removed from Yorktown to Richmond, stopping for a day or two in Williamsburg. While there "a ball was … given … by certain gentlemen in compliment … 'to the Misses Amblers.'" Eliza Ambler describes the incidents of this social event. The affair was "simple and frugal as to its viands," she writes, "but of the brilliancy of the company too much cannot be said; it consisted of more Beauty and Elegance than I had ever witnessed before… I was transported with delight." Yet she could not "treat … the prime mover in this civility with common good manners… His more successful friend Marshall, was devoted to my sister."520

This "ball" ended John Marshall's college studies; the lure of Mary Ambler was greater than that of learning to the none too studious captain. The abrupt ending521 of the notes he was making of Mr. Wythe's lectures, in the midst of the course, otherwise so inexplicable, was caused by her two days' sojourn in the college town. Forthwith he followed to Richmond, where, for two weeks he gayly played the part of the head of the family (acted "Pa," as Marshall quaintly expresses it), apparently in Jacquelin Ambler's absence.522

Although he had scarcely begun his studies at William and Mary; although his previous instruction by professional teachers was meager and fragmentary; and although his father could well afford the small expense of maintaining him at Williamsburg long enough for him to secure at least a moderate education, John Marshall never returned to college.523 No more lectures of Professor Wythe for the young lover. He would begin his professional career at once and make ready for the supreme event that filled all his thoughts. So while in Richmond he secured a license to practice law. Jefferson was then Governor, and it was he who signed the license to the youth who was to become his greatest antagonist. Marshall then went to Fauquier County, and there, on August 28, 1780, was admitted to the bar. "John Marshall, Gent., produced a license from his Excellency the Governor to practice law and took the oaths prescribed by act of Assembly," runs the entry in the record.524

He waited for the recruiting of the new troops he was to command, and held himself in readiness to take the field, as indeed he rushed to do without orders when Arnold's invasion came. But the new troops never were raised and Marshall finally left the service. "I continued in the army until the year 1781," he tells us, "when, being without a command, I resigned my commission in the interval between the invasion of Virginia by Arnold and Phillips."525

During this season of inaction he resolved to be inoculated against the smallpox. This was another effect which falling in love had on the young soldier; for he could, had he wished, have had this done more than once while with Washington's army.526 He would now risk his health no longer. But the laws of Virginia made the new method of treating smallpox almost impossible.527 So away on foot528 went John Marshall to Philadelphia to be made proof against this disfiguring malady.

According to Marshall's own account, he covered the ground at an amazing pace, averaging thirty-five miles a day; but when he arrived, so disreputable did he appear that the tavern refused to take him in.529 Long-bearded and slovenly clothed, with battered hat and uncouth manners, he gave the unfavorable first impression which the same causes so often produced throughout his life. This is not to be wondered at, for, writing twenty years afterward, when Marshall as Chief Justice was at the height of his career, his sister-in-law testifies that his "total negligence of person … often produced a blush on her [Marshall's wife's] cheek."530 But he finally secured lodgings, was inoculated, and, made secure from the attacks of the dreaded scourge, back he fared to Virginia and Mary Ambler.

And Marshall made love as he made war, with all his might. A very hurricane of a lover he must have been; for many years afterward he declared to his wife's sister that "he looked with astonishment at the present race of lovers, so totally unlike what he had been himself."531 In a touching letter to his wife, written almost half a century later, Marshall thus recalls the incidents of his courtship: —

"I begin with the ball at York, and with the dinner on the fish at your house the next day: I then retrace my visit to York, our splendid assembly at the Palace532 in Williamsburg, my visit to Richmond where I acted Pa for a fortnight, my return the ensuing fall and the very welcome reception you gave me on your arrival from Dover, our little tiffs & makings up, my feelings while Major Dick533 was courting you, my trip to the cottage,534 the lock of hair, my visit again to Richmond the ensuing fall, and all the thousand indescribable but deeply affecting instances of your affection or coldness which constituted for a time the happiness or misery of my life and will always be recollected with a degree of interest which can never be lost while recollection remains."535

When he left the army in 1781, Marshall, although a member of the bar, found no legal business to do.536 He probably alternated between the Oak Hill plantation in Fauquier County, where his help was sadly needed, and Richmond, where the supreme attraction drew him. Thus another year wore on. In this interval John Marshall engaged in politics, as was the custom of young gentlemen of standing and ambition; and in the fall of 1782 was elected to the House of Delegates from Fauquier County.537 This honor was a material help, not only in his career, but in his suit for the hand of Mary Ambler.

Also, membership in the Legislature required him to be, where his heart was, in Richmond, and not two months had John Marshall been in the Capital as a member of Virginia's Legislature when he was married. "In January [3d] 1783," writes Marshall, "I intermarried with Mary Willis Ambler, the second daughter of Mr. Jacquelin Ambler, then Treasurer of Virginia, who was the third son of Mr. Richard Ambler, a gentleman who had migrated from England, and settled at York Town, in Virginia."538

The Ambler abode in Richmond was not a romantic place for the wedding. The primitive town was so small that when the Ambler family reached it Eliza exclaimed, "where we are to lay our weary heads Heaven knows!" And she describes the house her father rented as "a little dwelling" so small that "our whole family can scarcely stand up altogether in it"; but Jacquelin Ambler took it because, poor as it was, it was "the only decent tenement on the hill."539

The elder Ambler sister thus pictures the Richmond of 1780: "This little town is made up of Scotch factors who inhabit small tenements scattered here and there from the river to the hill. Some of them look, as Colonel [Thomas] Marshall has observed, as if the poor Caledonians had brought them over on their backs, the weakest of whom being glad enough to stop at the bottom of the hill, others a little stronger proceeding higher, whilst a few of the stoutest and the boldest reached the summit."540 Eight years after the Amblers moved to Richmond, Jefferson wrote: "The town below Shockoe creek is so deserted you cannot get a person to live in a house there rent free."541

But Mary's cousin, John Ambler, who, at twenty-one years of age, found himself "one of the richest men in the State of Virginia,"542 solved the difficulty by offering his country seat for the wedding.543 Mary Ambler was only seventeen when she became the young lawyer's bride,544 and John Marshall was a little more than ten years older. After the bridegroom had paid the minister his fee, "he had but one solitary guinea left."545

This does not mean that John Marshall was without resources, but it indicates the scarcity of ready money in Virginia at the close of the war. Indeed, Marshall's father, while not yet the wealthy man he afterwards became,546 had, as we have seen, already acquired very considerable property. He owned at this time at least two thousand acres in Fauquier County;547 and twenty-two negroes, nine of them tithable (sixteen years old), twelve horses, and twenty-two head of cattle.548

When John Marshall married Miss Ambler, his father gave him one negro and three horses.549 The following year (1784) the Tithable Book shows but five tithable negroes, eight young negroes, eight horses, and eighteen head of cattle in Thomas Marshall's name. He evidently sold his other slaves and personal property or took them with him to Kentucky. So it is likely that the slaves, horses, and cattle left behind were given to his son, together with a part of Thomas Marshall's Fauquier County farm.550

During the Revolution Thomas Marshall was, like most other Continental officers, in sore need of money. He tried to sell his land to Washington for cash. Washington was anxious to buy "Lands in my own Neck at (almost) any price … in ye way of Barter … for Negroes … or … for any thing else (except Breeding Mares and Stock)." But he could not pay money. He estimated, by memory, Thomas Marshall's land at £3000, at a time when, because of depreciated money and inflated prices, "a Barrl. of Corn which used to sell for 10/ will now fetch 40 – when a Barl. of Porke that formerly could be had for £3 sells for £15." So Washington in 1778 thought that "Marshall is not a necessitous man." When it came to trading, the father of his country was keen and suspicious, and he feared, it would seem, that his boyhood friend and comrade in arms would "practice every deception in his power in order to work me … up to his price."551

Soon after John Marshall met Mary Ambler at the "ball" at Yorktown, and just before he went to William and Mary College, his father sold this very land that Washington had refused to purchase. On March 28, 1780, Thomas Marshall conveyed to Major Thomas Massey [Massie] one thousand acres in Fauquier County for "thirty thousand pounds Currency."552 This was a part of the seventeen hundred acres for which the elder Marshall had paid "nine hundred and twelve pounds ten shillings" seven years before.553 The change shows the startling depreciation of Virginia currency as well as Continental paper, both of which in 1780 had reached a very low point and were rapidly going down.554

It reveals, too, the Marshall family's extreme need of cash, a want sorely felt by nearly everybody at this period; and the familiar fact that ownership of land did not mean the ready command of money. The year after John Marshall's marriage he wrote to James Monroe: "I do not know what to say to your scheme of selling out. If you can execute it you will have made a very capital sum, if you can retain your lands you will be poor during life unless you remove to the western country, but you have secured for posterity an immense fortune"; and Marshall tells Monroe that the latter can avail himself of the knowledge of Kentucky lands possessed by the members of the Marshall family who were on the ground.555

Writing twenty years later of economic conditions during the period now under review, Marshall says: "Real property was scarcely vendible; and sales of any article for ready money could be made only at a ruinous loss… In every quarter were found those who asserted it to be impossible for the people to pay their public or private debts."556

So, although his father was a very well-to-do man when John Marshall began married life, he had little or no ready money, and the son could not expect much immediate paternal assistance. Thomas Marshall had to look out for the bringing-up of a large number of other children and to consider their future; and it is this fact which probably induced him to seek fortune anew in the Kentucky wilderness after he was fifty years of age. Legend has it that Thomas Marshall made his venture on Washington's advice. At any rate, he settled, permanently, in Kentucky in the fall of 1783.557

The fledgling lawyer evidently expected to start upon a legal career in the county of his birth; but immediately after marrying Miss Ambler, he established himself at Richmond, where her family lived, and there began the practice of the law. While his marriage into the Ambler family was inspired exclusively by an all-absorbing love, the alliance was a fortunate one for John Marshall from the practical point of view. It gave him the support of a powerful State official and one of the best-liked men in all Virginia. A favor asked by Jacquelin Ambler was always granted if possible; and his recommendation of any one was final. The Ambler household soon became the most attractive in Richmond, as it had been in Yorktown; and Marshall's marriage to Mary Ambler gave him a social standing which, in the Virginia of that day, was a very great asset in business and politics.

The house to which he took his bride was a tiny one-story affair of wood, with only two rooms; the best house the Amblers themselves could secure, as we have seen, was so small that the "whole family" could scarcely crowd into it. Three years before John Marshall and his young wife set up housekeeping, Richmond could "scarce afford one comfort in life."558 According to Mrs. Carrington the dwelling-houses had no curtains for the windows.559 The streets were open spaces of earth, unpaved and without sidewalks. Many years after Marshall established himself at the new and raw Virginia Capital, Main Street was still unpaved, deep with dust when dry and so muddy during a rainy season that wagons sank up to the axles. Footways had been laid only at intervals along the town's chief thoroughfare; and piles of ashes and cinders were made to serve as street-crossings, from which, if one misstepped on a dark and rainy night, he found himself deep in the mire. A small stream flowed diagonally across Main Street, flooding the surface; and the street itself ended in gullies and swamps.560 In 1783 the little town was, of course, still more primitive.

There were no brick or stone buildings in Richmond when Marshall was married. The Capitol, itself, was an ugly structure – "a mere wooden barn" – on an unlovely site at the foot of a hill.561 The private dwellings, scattered about, were the poor, mean, little wooden houses already described by Eliza Ambler.

Trade was in the hands of British merchants who managed to retain their commercial hold in spite of the Revolution.562 Rough, heavy wagons drawn by four or six horses brought in the produce of the country, which included "deer and bear skins, furs, ginseng, snake-root," and even "dried rattlesnakes … used to make a viper broth for consumptive patients."563 These clumsy vehicles were sometimes a month in covering less than two hundred miles.564 Specie was the money chiefly used in the back country and the frontier tradesmen made remittances to Richmond by placing a "bag of gold or silver in the centre of a cask of melted wax or tallow … or [in a] bale of hemp."565

There was but one church building and attendance was scanty and infrequent.566 The principal amusement was card-playing, in which everybody indulged,567 and drinking was the common practice.568 The town sustained but one tavern which was kept by a Neapolitan named Farmicola. This hostelry had two large rooms downstairs and two above. The beds were under the roof, packed closely together and unseparated by partitions. When the Legislature met, the inn was crowded; and "Generals, Colonels, Captains, Senators, Assembly-men, Judges, Doctors, Clerks, and crowds of Gentlemen of every weight and calibre and every hue of dress, sat altogether about the fire, drinking, smoking, singing, and talking ribaldry."569

Such were conditions in the town of Richmond when John Marshall hazarded his adventure into the legal profession there in 1783. But it was the seat of the State Government, and the place where the General Court of Appeals and the High Court of Chancery were located. Yet small, poor, and mean as was the Virginia Capital of that day, not even Philadelphia, New York, or Boston could boast of a more brilliant bar.

Randolph and Wickham, Innes and Ronald, Campbell and Call, and others whose distinction has made the bar of the Old Dominion historic, practiced at Richmond. And the court around which this extraordinary constellation gathered was equally eminent. Pendleton, whose intellect and industry more than supplied early defects in education, was president of the Court of Appeals; Wythe was one of the judges of the High Court of Chancery, of which he afterwards became sole chancellor; Paul Carrington and others of almost equal stature sat with Pendleton on the Supreme Bench. Later on appeared the erudite, able, and commanding Roane, who, long afterwards, when Marshall came into his own, was to be his most formidable antagonist in the clash of courts.

Among such lawyers and before a court of this high quality the young attorney from the backwoods of Fauquier County began his struggle for a share of legal business. He had practically no equipment except his intellect, his integrity, and his gift for inspiring confidence and friendship. Of learning in the law, he had almost none at all. He had read Blackstone, although not thoroughly;570 but the only legal training that Marshall had received was acquired during his few weeks at William and Mary College. And in this romantic interval, as we have seen, he was thinking a good deal more about Mary Ambler than about preparing himself for his career.

We know exactly to which of Wythe's lectures Marshall had listened; for he took notes of them. He procured a thick, blank book strongly bound in calf. In this he wrote in a large, firm hand, at the top of the page, the topics of lectures which Wythe had announced he would give, leaving after each headline several pages for notes.571 Since these notes are a full record of Marshall's only formal instruction in the law, a complete list of the subjects, together with the space allotted to each, is as important as it is interesting.

On the subject of Abatement he wrote three pages; on Accounts, two pages; on Accord and Satisfaction, one page; Actions in General, one and a half pages; Actions Local and Transitory, one fourth page; Actions Qui Tam, one and one fourth pages; Actions on the Case, three and one half pages; Agreements, three pages; Annuity and Rent Charge, two pages; Arbitrament and Award, one and one half pages; Assault and Battery, two thirds of a page; Assignment, one half page; Assumpsit, one and a half pages; Attachment, one half page; Audita Querela, one fourth page; Authority, one fourth page; Bail in Civil Causes, one half page; Bail in Criminal Causes, one and two thirds pages; Bailment, two pages; Bargain and Sale, one half page; Baron and Feme, four pages; Bastardy, three quarters page; Bills of Sale, one half page; Bills of Exceptions, one half page; Burglary, one page; Carriers, one page; Certiorari, one half page; Commitments, one half page; Condition, five and one half pages; Coparceners, one and one half pages; Costs, one and one fourth pages; Covenant, three pages; Curtesy of England, one half page; Damages, one and one half pages; Debt, one and one half pages; Descent, one and one half pages; Detinue, one half page; Devises, six and one half pages; Disseisin, two lines; Distress, one and two thirds pages; Dower, two pages; Duress, one third page; Ejectment, two and two thirds pages; Election, two thirds page; Error, two and one third pages; Escape in Civil Cases, one and one fifth pages; Estates in Fee Simple, three fourths page; Estate for Life and Occupancy, one and four fifths pages; Evidence, four pages, two lines; Execution, one and five sixths pages; Executors and Administrators, eleven pages; Extinguishment, two thirds page; Extortion, one half page; Felony, three and one sixth pages; Forcible Entry and Detainer, three fourths page; Forgery, three pages; Forfeiture, two and four fifths pages; Fraud, three pages, one line; Grants, three and three fourths pages; Guardian, two and five sixths pages; Heir and Ancestor, five pages, two lines; Idiots and Lunatics, three pages; Indictments, four pages, three lines; Infancy and Age, nine and one half pages; Information, one and one fifth pages; Injunction, one and two thirds pages; Inns and Innkeepers, two and two thirds pages; Joint Tenants and Tenants in Common, nine and one sixth pages; Jointure, three pages.

We find six pages he had reserved for notes on the subject of Juries left blank, and two blank pages follow the caption, "Justice of the Peace." But he made seventeen and two thirds pages of notes on the subjects of Leases and Terms for Years, and twelve and one half pages on the subject of Legacies. This ended his formal legal studies; for he made no notes under the remaining lecture subjects.572

Not an ideal preparation to attract clients, we must admit, nor to serve them well when he got them. But slender and elementary as was his store of learning, his apparel, manners, and habits were even less likely to bring business to this meagerly equipped young advocate.

Marshall made practically no money as a lawyer during his first year in Richmond. Most of his slender income seems to have been from his salary as a member of the Legislature.573 He enters in his Account Book in 1783 (where it begins) several receipts "by my civil list warrants," and several others, "Recḍ from Treasury." Only four fees are entered for the whole year – one for three pounds, another for two pounds, eleven shillings, one for two pounds, ten shillings, and a fourth for two pounds, eight shillings.

On the contrary, he paid one pound, two shillings, sixpence for "advice fee given the attorney for opinion on surveyors fees." He bought "one pair Spectacles" for three shillings and ninepence. His sociable nature is revealed at the beginning of his career by entries, "won at Whist 24-1-4" and "won at Whist 22/"; and again "At Backgammon 30/-1-10." Also the reverse entry, "Lost at Whist £3 14/."574