The Life of John Marshall (Volume 2 of 4). Beveridge Albert Jeremiah
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 & almost 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."490
Again, writing to Stuart concerning a libel suit, Marshall says: "Whether the truth of the libel may be justified or not is a perfectly unsettled question. If in that respect the law here varies from the law of England it must be because such is the will of their Honors for I know of no legislative act to vary it. It will however be right to appeal was it only to secure a compromise."491
Marshall's sociableness and love of play made him the leader of the Barbecue Club, consisting of thirty of the most agreeable of the prominent men in Richmond. Membership in this club was eagerly sought and difficult to secure, two negatives being sufficient to reject a candidate. Meetings were held each Saturday, in pleasant weather, at "the springs" on the farm of Mr. Buchanan, the Episcopal clergyman. There a generous meal was served and games played, quoits being the favorite sport. One such occasion of which there is a trustworthy account shows the humor, the wit, and the good-fellowship of Marshall.
He welcomed the invited guests, Messrs. Blair and Buchanan, the famous "Two Parsons" of Richmond, and then announced that a fine of a basket of champagne, imposed on two members for talking politics at a previous meeting of the club, had been paid and that the wine was at hand. It was drunk from tumblers and the Presbyterian minister joked about the danger of those who "drank from tumblers on the table becoming tumblers under the table." Marshall challenged "Parson" Blair to a game of quoits, each selecting four partners. His quoits were big, rough, heavy iron affairs that nobody else could throw, those of the other players being smaller and of polished brass. Marshall rang the meg and Blair threw his quoit directly over that of his opponent. Loud were the cries of applause and a great controversy arose as to which player had won. The decision was left to the club with the understanding that when the question was determined they should "crack another bottle of champagne."
Marshall argued his own case with great solemnity and elaboration. The one first ringing the meg must be deemed the winner, unless his adversary knocked off the first quoit and put his own in its place. This required perfection, which Blair did not possess. Blair claimed to have won by being on top of Marshall; but suppose he tried to reach heaven "by riding on my back," asked Marshall. "I fear that from my many backslidings and deficiencies, he may be badly disappointed." Blair's method was like playing leap frog, said he. And did anybody play backgammon in that way? Also there was the ancient legal maxim, "Cujus est solum, ejus est usque ad cœlum": being "the first occupant his right extended from the ground up to the vault of heaven and no one had a right to become a squatter on his back." If Blair had any claim "he must obtain a writ of ejectment or drive him [Marshall] from his position vi et armis." Marshall then cited the boys' game of marbles and, by analogy, proved that he had won and should be given the verdict of the club.
Wickham argued at length that the judgment of the club should be that "where two adversary quoits are on the same meg, neither is victorious." Marshall's quoit was so big and heavy that no ordinary quoit could move it and "no rule requires an impossibility." As to Marshall's insinuation that Blair was trying to reach "Elysium by mounting on his back," it was plain to the club that such was not the parson's intention, but that he meant only to get a more elevated view of earthly things. Also Blair, by "riding on that pinnacle," will be apt to arrive in time at the upper round of the ladder of fame. The legal maxim cited by Marshall was really against his claim, since the ground belonged to Mr. Buchanan and Marshall was as much of a "squatter" as Blair was. "The first squatter was no better than the second." And why did Marshall talk of ejecting him by force of arms? Everybody knew that "parsons are men of peace and do not vanquish their antagonists vi et armis. We do not deserve to prolong this riding on Mr. Marshall's back; he is too much of a Rosinante to make the ride agreeable." The club declined to consider seriously Marshall's comparison of the manly game of quoits with the boys' game of marbles, for had not one of the clergymen present preached a sermon on "marvel not"? There was no analogy to quoits in Marshall's citation of leap frog nor of backgammon; and Wickham closed, amid the cheers of the club, by pointing out the difference between quoits and leap frog.
The club voted with impressive gravity, taking care to make the vote as even as possible and finally determined that the disputed throw was a draw. The game was resumed and Marshall won.492
Such were Marshall's diversions when an attorney at Richmond. His "lawyer dinners" at his house,493 his card playing at Farmicola's tavern, his quoit-throwing and pleasant foolery at the Barbecue Club, and other similar amusements which served to take his mind from the grave problems on which, at other times, it was constantly working, were continued, as we shall see, and with increasing zest, after he became the world's leading jurist-statesman of his time. But neither as lawyer nor judge did these wholesome frivolities interfere with his serious work.
Marshall's first case of nation-wide interest, in which his argument gave him fame among lawyers throughout the country, was the historic controversy over the British debts. When Congress enacted the Judiciary Law of 1789 and the National Courts were established, British creditors at once began action to recover their long overdue debts. During the Revolution, other States as well as Virginia had passed laws confiscating the debts which their citizens owed British subjects and sequestering British property.
Under these laws, debtors could cancel their obligations in several ways. The Treaty of Peace between the United States and Great Britain provided, among other things, that "It is agreed that creditors on either side shall meet with no legal impediments to the recovery of the full value in sterling money of all bona fide debts heretofore contracted." The Constitution provided that "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding,"494 and that "The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases … between a State, or the citizens thereof, and foreign States citizens, or subjects."495
Thus the case of Ware, Administrator, vs. Hylton et al., which involved the validity of a State law in conflict with a treaty, attracted the attention of the whole country when finally it reached the Supreme Court. The question in that celebrated controversy was whether a State law, suspending the collection of a debt due to a subject of Great Britain, was valid as against the treaty which provided that no "legal impediment" should prevent the recovery of the obligation.
Ware vs. Hylton was a test case; and its decision involved immense sums of money. Large numbers of creditors who had sought to cancel their debts under the confiscation laws were vitally interested. Marshall, in this case, made the notable argument that carried his reputation as a lawyer beyond Virginia and won for him the admiration of the ablest men at the bar, regardless of their opinion of the merits of the controversy.
It is an example of "the irony of fate" that in this historic legal contest Marshall supported the theory which he had opposed throughout his public career thus far, and to demolish which his entire after life was given. More remarkable still, his efforts for his clients were opposed to his own interests; for, had he succeeded for those who employed him, he would have wrecked the only considerable business transaction in which he ever engaged.496 He was employed by the debtors to uphold those laws of Virginia which sequestered British property and prevented the collection of the British debts; and he put forth all his power in this behalf.
Three such cases were pending in Virginia; and these were heard twice by the National Court in Richmond as
Marshall to Archibald Stuart, March 27, 1794; MS., Va. Hist. Soc.
Munford, 326-38.
See vol. iii of this work.
Constitution of the United States, article vi.
The Fairfax deal; see