John Marshall :: CHAPTER VIII HIS LAST DAYS

CHAPTER VIII HIS LAST DAYS

The year 1831 was a sad one for Marshall. The greatest apprehensions were felt for his health. “Wirt,” says John Quincy Adams in his diary, on February 13, 1831, “spoke to me, also, in deep concern and alarm at the state of Chief Justice Marshall’s health.” In the autumn he went to Philadelphia to undergo the torture of the operation of lithotomy, before the days of ether. It was the last operation performed by the distinguished surgeon, Dr. Physick. Another eminent surgeon, who assisted him, Dr. Randall, has given an account of this occasion, in which he says:—

“It will be readily admitted that, in consequence of Judge Marshall’s very advanced age, the hazard attending the operation, however skillfully performed, was considerably increased. I consider it but an act of justice, due to the memory of that great and good man, to state that, in my opinion, his recovery was in a great degree owing to his extraordinary self-possession, and to the calm and philosophical views which he took of his case, and the various circumstances attending it.

“It fell to my lot to make the necessary preparations. In the discharge of this duty I visited him on the morning of the day fixed on for the operation, two hours previously to that at which it was to be performed. Upon entering his room I found him engaged in eating his breakfast. He received me with a pleasant smile upon his countenance, and said: ‘Well, doctor, you find me taking breakfast, and I assure you I have had a good one. I thought it very probable that this might be my last chance, and therefore I determined to enjoy it and eat heartily.’ I expressed the great pleasure which I felt at seeing him so cheerful, and said that I hoped all would soon be happily over. He replied to this that he did not feel the least anxiety or uneasiness respecting the operation or its results. He said that he had not the slightest desire to live, laboring under the sufferings to which he was then subjected; that he was perfectly ready to take all the chances of an operation, and he knew there were many against him; and that if he could be relieved by it he was willing to live out his appointed time, but if not, would rather die than hold existence accompanied with the pain and misery which he then endured.

“After he finished his breakfast I administered to him some medicine; he then inquired at what hour the operation would be performed. I mentioned the hour of eleven. He said, ‘Very well, do you wish me now for any other purpose, or may I lie down and go to sleep?’ I was a good deal surprised at this question, but told him that if he could sleep it would be very desirable. He immediately placed himself upon the bed, and fell into a profound sleep, and continued so until I was obliged to rouse him in order to undergo the operation. He exhibited the same fortitude, scarcely uttering a murmur, throughout the whole procedure, which, from the peculiar nature of his complaint, was necessarily tedious.”

From the patient over a thousand calculi were taken. He had a perfect recovery; nor did the disorder ever return.[54]

On Christmas Day of that year, as I have said, his wife died, the object of his tenderest affection ever since he had first seen her, more than fifty years before. The day before she died, she hung about his neck a locket with some of her hair. He wore it always, night and day; and, by his order, it was the last thing removed from his body when he died.[55]

It was at this period, in 1831 and 1832, that Inman’s fine portrait of him, now hanging in the rooms of the Law Association of Philadelphia, was painted, for the bar of that city. A replica which Marshall himself bought for his daughter, is on the walls of the state library in Richmond. This portrait is regarded as the best of those painted in his later life. Certainly it best answers the description of him by an English traveler, who, seeing him often in the spring of 1835, remarked that “the venerable dignity of his appearance would not suffer in comparison with that of the most respected and distinguished-looking peer in the British House of Lords.”[56]

After his recovery, in 1831, Marshall seems to have been in good health down to the early part of 1835. Then, we are told, he suffered “severe contusions” in the stage-coach in returning from Washington.[57] His health now rapidly declined. He went again for relief to Philadelphia, and died there on July 6, 1835, of a serious disorder of the liver. He had missed from his bedside his oldest son, Thomas, for whom he had been asking. Upon the gravestone of that son, behind the old house at Oakhill, you may read the pathetic tragedy, withheld from his father, that accounts for this absence. While hastening to Philadelphia, at the end of June, he was passing through the streets of Baltimore, in the midst of a tempest, and was killed by the falling of a chimney in the storm.

The great Chief Justice was carried home with every demonstration of respect and reverence. He was buried by the side of his wife, in the Shockoe Hill Cemetery in Richmond. There, upon horizontal tablets, are two inscriptions of affecting simplicity, both written by himself. The first runs thus: “John Marshall, Son of Thomas and Mary Marshall, was born the 24th of September, 1755. Intermarried with Mary Willis Ambler, the 3d of January, 1783. Departed this life the [6th] day of July, 1835.” The second, thus: “Sacred to the memory of Mrs. Mary Willis Marshall, Consort of John Marshall, Born the 13th of March, 1766. Departed this life the 25th of December, 1831. This stone is devoted to her memory by him who best knew her worth, And most deplores her loss.”

Among the tributes to Chief Justice Marshall which were made in the months that followed his death, and in later times, nothing finer has been said than the heartfelt expression of the bar of his own circuit, at Richmond, in November, 1835. The resolutions of Mr. B. Watkins Leigh, unanimously adopted, recalled “the memory of the venerable judge” who had presided there for more than thirty-four years “with such remarkable diligence in office, that until he was disabled by the disease which removed him from life, he was never known to be absent from the bench, during term time, even for a day,—with such indulgence to counsel and suitors that everybody’s convenience was consulted but his own,—with a dignity, sustained without effort, and apparently without care to sustain it, to which all men were solicitous to pay due respect,—with such profound sagacity, such quick penetration, such acuteness, clearness, strength, and comprehension of mind, that in his hands the most complicated causes were plain, the weightiest and most difficult, easy and light,—with such striking impartiality and justice, and a judgment so sure, as to inspire universal confidence, so that few appeals were ever taken from his decisions, during his long administration of justice in this court, and those only in cases where he himself expressed doubt,—with such modesty that he seemed wholly unconscious of his own gigantic powers,—with such equanimity, such benignity of temper, such amenity of manners, that not only none of the judges who sat with him on the bench, but no member of the bar, no officer of the court, no juror, no witness, no suitor, in a single instance, ever found or imagined, in anything said or done, or omitted by him, the slightest cause of offense.

“His private life was worthy of the exalted character he sustained in public station. The unaffected simplicity of his manners; the spotless purity of his morals; his social, gentle, cheerful disposition; his habitual self-denial, and boundless generosity towards others; the strength and constancy of his attachments, his kindness to his friends and neighbors; his exemplary conduct in the relations of son, brother, husband, father; his numerous charities; his benevolence toward all men, and his ever active beneficence; these amiable qualities shone so conspicuously in him, throughout his life, that highly as he was respected, he had the rare happiness to be yet more beloved. He was, indeed, a bright example of the true wisdom which consists in the union of the greatest ability and the greatest virtue.”

On the west side of the Capitol at Washington, midway between the staircases that ascend from the garden to the great building, and a little in advance, there is a colossal bronze figure of Marshall by the sculptor Story, the son of the great man’s colleague and friend,—placed there in 1884. It is a very noble work of art, worthy of the subject and the place. The Chief Justice is sitting, clothed in his judicial robe, in the easy attitude of one engaged in expounding a subject of which he is master. The figure is leaning back in the chair with the head slightly inclining forward; the right arm rests on the arm of the chair, with the hand open and extended; the left hand, holding a scroll, lies easily on the other arm of the chair. The crossed legs are covered by the gown, while low shoes and buckles, and hair gathered in a queue, speak of lifelong habits. The solid and beautiful head, and the grave and collected dignity of the features and the whole composition are very noble, satisfactory, and ideally true.

The figure, standing, would be ten feet high. It sits seven feet high, and is raised upon a suitable pedestal, decorated with marble bas-reliefs of classical designs. These, if the truth were told, might well be spared, but the statue itself will fitly commemorate for many ages one of the greatest, noblest and most engaging characters in American history.

The Riverside Press
Electrotyped and printed by H. O. Houghton & Co.
Cambridge, Mass., U.S.A.

FOOTNOTES:

[1] The Chief Justice seems to have inherited and accumulated a considerable estate. By his will he gave to each of his grandsons named John a thousand acres of land. The Green Bag, viii. 4. He also had been a surveyor. Ib. 480.

[2] Hammond’s Blackstone, vol. i., pp. viii. xxv.

[3] Marshall’s eyes are often spoken of as black. In fact, they were brown.

[4] It may be added that Thomas Marshall, father of the Chief Justice, was the son of John Marshall, called “of the Forest,” from the name of his place in Westmoreland County. Of this John it is said, in a little autobiography of the Chief Justice of some five hundred words, preserved in Mr. Justice Gray’s valuable oration at Richmond, on February 4, 1901, that his “parents migrated from Wales and settled in the county of Westmoreland in Virginia.” The will of “Thomas Marshall carpenter,” proved May 31, 1704, describing himself as of Westmoreland County, is printed in the Virginia Magazine of History, ii. 343, 344; and it is there stated in a note that this Thomas “was the first of his race in America.” On the other hand, we are told by an intelligent writer in Appleton’s CyclopÆdia of American Biography, and elsewhere, that the father of “John of the Forest” was Thomas, born in Virginia in 1655, who died in 1704; and that it was his father, John, a captain of cavalry in the service of Charles I., who emigrated to Virginia about 1650.

[5] Flanders, Lives of the Chief Justices, ii. 291.

[6] His youngest son, Edward Carrington Marshall, graduated at Harvard in 1826.

[7] Only six of his children grew to full age. See his touching letter to Judge Story of June 26, 1831: “You ask me if Mrs. Marshall and myself have ever lost a child. We have lost four,” etc.—Proceedings of the Mass. Hist. Soc. (2d series) xiii. 345.

[8] Richard Anderson, father of Robert Anderson, the hero of Fort Sumter. See Marion Harland’s Old Colonial Homesteads, 97.

[9] But see Mrs. Hardy, in The Green Bag, viii. 482.

[10] Old Churches and Families of Virginia, ii. 105.

[11] It was given by another judge.

[12] Mr. Justice Gray preserves this fact in his address on Marshall. His commission bore the same date with that of Chief Justice Jay, September 26, 1789,—two days after the approval of the Judiciary Act.

[13] See Wait’s State Papers, iii. 165-304.

[14] The Green Bag, viii. 482.

[15] Paulding’s Life of Washington, ii. 191; Lippincott’s Magazine, ii. 624, 625.

[16] In an amusing account of this election (Munford’s The Two Parsons), we are told that the sheriff presided, with the two candidates, Marshall and John Clopton, seated on the justice’s bench. The voter, being asked for whom he voted, gave the name of his candidate; and the latter thanked him; e.g., “Your vote is appreciated, sir,” said Marshall to his friend Parson Blair. For an account of the same method of conducting elections in Virginia at a later period, see John S. Wise’s The End of an Era.

[17] “The masterly and conclusive argument of John Marshall in the House of Representatives. 8 Stat. 129; Wharton’s State Trials, 392; Bee [Reports], 286; 5 Wheat. appendix 3.”—Gray, J., speaking for the Supreme Court of the United States, in Fong Yue Ting v. U. S., 149 U. S. 698, 714. This speech is also found in Moore’s American Eloquence, ii. 7.

[18] The President had written to the Secretary of State from Quincy, May 21, 1799: “How far the President of the United States would be justified in directing the judge to deliver up the offender is not clear. I have no objection to advise, and request him to do so.” Wharton’s State Trials, 418.

[19] The short “autobiography” before referred to (ante, p. 10, n.) ends thus: “I have written no book except the ‘Life of Washington,’ which was executed with so much precipitation as to require much correction.”

[20] Van Santvoord, Lives of the Chief Justices, 343, n.

[21] Coxe, Jud. Power, 95-102; Thayer’s Cases on Constitutional Law, i. 146-149.

[22] Eakin v. Raub, 12 Sergeant & Rawle, 330.

[23] What Pinckney said in 1799 was this: “Upon no subject am I more convinced than that it is an unsafe and dangerous doctrine in a republic ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country.” Wharton, State Trials, 412.

[24] 4 Amer. Jurist, 293; Story, Const. § 1579, n.

[25] Stuart v. Laird, 1 Cranch, 299.

[26] Marshall, when the act of 1802 restored the old system, stated to his associates his deliberate agreement with the opinion expressed by his predecessors above referred to, and proposed to refuse to sit in the circuit court. All his brethren agreed with his view on the constitutional point, but thought the question should be regarded as at rest, by reason of the earlier practice of the court, up to 1801. This view prevailed, and was soon afterwards, as above stated, judicially adopted by the court. This statement is made by Chancellor Kent in 3 N. Y. Review, 347 (1838).

For the knowledge of the authorship of this valuable article and of another related one in 2 ib. 372, I am indebted to the courtesy of Dr. J. S. Billings, the Director of the New York Public Library, and the investigations of Mr. V. H. Paltsits, one of the librarians in that institution.

[27] This construction, that the statute purported to authorize their acting in that capacity was afterwards, in 1794, held by the Supreme Court to be wrong. Yale Todd’s Case, 13 Howard, 52.

[28] Hayburn’s Case, 2 Dallas, 409.

[29] Volume v., p. 444 (Philadelphia edition, 1807).

[30] 1 Cranch, 137.

[31] In like manner, Jay, commissioned Chief Justice on September 26, 1789, continued, at Washington’s request, to act also as foreign secretary until Jefferson’s return from Europe. Jefferson did not reach New York until March 21, 1790.

[32] And so the careful headnote of Judge Curtis in 1 Curtis’s Decisions of the Supreme Court, 368.

[33] See Ford’s Jefferson, ix. 62; draft of a letter to District Attorney Hay.

[34] Hare, Am. Const. Law, i. 607.

[35] See, however, Chancellor Kent in 2 N. Y. Rev. 372.

[36] Mississippi v. Johnson, 4 Wallace, 475, 492 (1866).

[37] 12 Serg. & Rawle, 330; s. c. 1 Thayer’s Const. Cases, 133.

[38] As to this general subject see “Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harvard Law Review, 129. Compare the remark of Lord John Russell: “Every political constitution, in which different bodies share the supreme power, is only enabled to exist by the forbearance of those among whom this power is distributed.” I quote this from the motto of Woodrow Wilson’s fifth chapter in his Congressional Government.

[39] The Nation, February 7, 1901.

[40] He married John Marshall’s sister.

[41] These letters were printed in 1897 in the American Hist. Review, ii. 294. I was not aware of their ever having been printed, until after these pages were in type.

[42] The Virginia Magazine of History, vii. 233.

[43] Chancellor Kent in New York Review, 348, 349.

[44] Anti-masonic Pamphlets, Harvard College Library, No. 12, p. 18; ib. No. 9.

[45] Mrs. Hardy, 8 Green Bag, 487.

[46] In speaking of this same Club, Mr. G. W. Munford says: “We have seen Mr. Marshall, in later times, when he was Chief Justice of the United States, on his hands and knees, with a straw and a penknife, the blade of the knife stuck through the straw, holding it between the edge of the quoit and the hub; and when it was a very doubtful question, pinching or biting off the ends of the straw, until it would fit to a hair.”

James K. Paulding has preserved an entertaining account of a game, in 1820, when Jarvis, the artist, was present, playing, apparently on the same side with the Chief Justice. “I remember,” he says, “in the course of the game, and when the parties were nearly at a tie, that some dispute arose as to the quoit nearest the meg. The Chief Justice was chosen umpire between the quoit belonging to Jarvis and that of Billy Haxall. The judge bent down on one knee, and with a straw essayed the decision of this important question on which the fate of the game in a great measure depended. After nicely measuring, and frequently biting off the end of the straw, ‘Gentlemen,’ said he, ‘you will perceive this quoit would have it, but the rule of the game is to measure from the visible iron. Now that clod of dirt hides almost half an inch. But, then he has a right to the nearest part of the meg; and here, as you will perceive, is a splinter, which belongs to and is part of the meg, as much as the State of Virginia is a part of the Union. This is giving Mr. Haxall a great advantage; but, notwithstanding, in my opinion, Jarvis has it by at least the sixteenth part of an inch, and so I decide, like a just judge, in my own favor.’” 2 Lippincott’s Magazine, 623, 626. It is said that he was often appointed thus to be judge in his own case.

[47] See The Two Parsons, by G. W. Munford.

[48] Mr. Justice Keith, now President of the Virginia Court of Appeals.

[49] 10 Peters’s Reports, vii.

[50] The half-length, sitting portrait of Marshall, in the dining-hall at Cambridge, was painted by Harding, in 1828, for the Chief Justice himself; and by him given to Judge Story, “to be preserved, when I shall sleep with my fathers, as a testimonial of sincere and affectionate friendship.” Story bequeathed it to the college.

[51] See an interesting’ article by Mr. Justice Bradley, of the Supreme Court of the United States, on portraits of Marshall, in the Century Magazine for September, 1889, (vol. 38, page 778.) A portrait by Jarvis, valued as a work of art and as a good likeness, is in the possession of Mr. Justice Gray. Mr. Justice Bradley appears to be wrong in saying that there is a full-length of Marshall at Washington and Lee University. There are two portraits of him there, but, as I am assured, no full-length.

[52] P. 363, n.

[53] Mrs. Hardy, quoting her grandmother, in 8 Green Bag, 484.

[54] My friend Dr. Horace Howard Furness, of Philadelphia, writes (and allows me to quote): “I remember hearing my father say that Dr. Physick told him, just after that operation of lithotomy, that he had ‘washed the judge out as clean as a plate,’ and that he went on to say that after the operation the strictest quiet was enjoined, not a muscle was to be moved; but what was his alarm on his next visit to see Judge Marshall sitting up in bed with paper and pencil on his knees, writing to his wife!”

[55] Marion Harland, Old Colonial Homesteads, 98.

[56] Travels in North America, by Hon. Charles Augustus Murray,—“the late Sir Charles Murray, at one time Master of the Household to the Queen, who, as a young man, was attached to the British Legation at Washington.”—The Spectator, February 9, 1901, p. 199.

[57] Many a “severe contusion” must he have suffered in those primitive days, from upsets and joltings, in driving every year between Richmond and Washington, some 120 miles each way; from Richmond to Raleigh and back, in attending his North Carolina circuit, about 175 miles each way; and between Richmond and Oakhill, his country place, every summer, about 100 miles each way. For instance, in 1812, Cranch, the reporter, remarks that Marshall was not present at the beginning of the term, as he “received an injury by the oversetting of the stage-coach on his journey from Richmond.”

Clyx.com