Roujet D. Marshall


Roujet DeLisle Marshall was an American judge who served as a justice of the Wisconsin Supreme Court from 1895 to 1918.
He was named after the writer of the French national anthem, La Marseillaise, Claude Joseph Rouget de Lisle.

Early life

Born in Nashua, New Hampshire in 1847 to farming parents, Marshall's family moved to Wisconsin in 1854 when he was 7. In the early 1860s however, his father was disabled, and Marshall had to take on most of the work on the farm while continuing his schooling and eventually attending college.
After reading a biography of Constitutional lawyer William Wirt, he was inspired to go into law.
Marshall was admitted to the bar in 1871, and worked with a lawyer in Sauk County, N.W. Wheeler. Wheeler soon moved to Chippewa Falls and Marshall joined him. Northern Wisconsin was then part of a vast white pine forest stretching across northern North America; Wisconsin’s portion of the forest was systematically logged out from about 1830 to 1910.  In the 1870s the lumber industry was at its peak and Chippewa Falls was one of the centers of logging activity in the state, along with Eau Claire and Oshkosh.
The town and its lawyers followed a casual, frontier-oriented culture; but Marshall, who believed devoutly in order and hard work, followed a different path.  “The members of the bar, as a rule,” he said, “were a lot of good fellows who readily turned aside from the business of their profession at most any time during business hours to enjoy a social game of cards with more or less drinks by the side, I was regarded as a drudge and not in any sense a mixer.”

Frederick Weyerhaeuser and the Chippewa Pool

In 1876 Frederick Weyerhaeuser, an Illinois-based lumber baron who had substantial holdings in northwest Wisconsin, hired Marshall to handle his legal business in the region.  Groups of lumbermen based in Eau Claire and Chippewa Falls were then competing for control of the region’s timber.  Throughout the 1870s they battled each other for control of the region’s rivers and for preferential treatment from the legislature.  In the late 1870s Weyerhaeuser expanded his holdings and gained control of the Chippewa Falls group.  In early 1880, a time when American businesses were consolidating and trying to achieve monopoly control in many different fields, the Eau Claire group approached Weyerhaeuser about a cooperative arrangement.  At Weyerhaeuser’s request Marshall prepared a charter for a cartel, known as the Chippewa Pool, under which both groups would share their facilities in order to gather logs and ship them downriver to Midwestern lumber markets.  Weyerhaeuser would manage the cartel, and each group would receive an agreed-upon percentage of the cartel’s profits.  
The cartel dominated the northwest Wisconsin market for the remainder of the lumber era.  Marshall’s role in forming it, and his association with Weyerhaeuser brought him legal and political prominence and made him a wealthy man.  Marshall, a self-made man, firmly believed that anyone could succeed through hard work and temperate habits.  He achieved his success in an era that believed in minimizing constraints on entrepreneurialism and exploitation of natural resources, and he defended those beliefs throughout his life.

Judicial Service

In 1888 Marshall was elected circuit judge for an area comprising the northwest corner of Wisconsin, and he soon gained a reputation as a hardworking, no-nonsense judge.  “Decisive, uncompromising, domineering, his arrogance is born of the impatience of strength and not that of weakness,” said one observer; “is capacity for work appears to be unlimited.”  Marshall soon expressed interest in advancing to Wisconsin’s Supreme Court.  After passing up two opportunities because he believed the prevailing political conditions were not right, he secured nearly unanimous support from the state’s bar for a vacancy that occurred in 1895 and Governor William Upham appointed him to the Court, albeit with some reluctance.

Marshall and Progressive Reforms

Marshall served on Wisconsin’s Supreme Court throughout the Progressive era.  During that era many state courts struck down reform laws sponsored by the Progressives, using the substantive due process doctrine.  Under the doctrine, courts gave little deference to legislative policy decisions:  they protected individual liberty and property rights and individuals’ rights to contract freely against governmental interference and interpreted government’s power to promote the public welfare narrowly. Between 1897 and 1908, Marshall and his colleagues struck down several reform laws including a Beloit school board ordinance requiring all students to be vaccinated for smallpox; a state law prohibiting “yellow dog” contracts and a state law to improve tenement housing in Milwaukee.
Marshall was not hostile to all Progressive reforms. He strongly supported the movement for workers compensation laws that arose at the end of the nineteenth century, even though such laws would make employers absolutely liable for workers’ injuries.  Marshall believed that the existing system of allowing workers to sue their employers in court, with the chance of a large award or no award at all, was inefficient. Workers compensation would provide more predictability and security for both sides:  workers would be guaranteed recovery but their benefits would be limited and fixed in a statutory schedule.  “Why should not the sacrifices of all be taken at once as the burdens of all,” he asked, “not scattering by the way human wrecks to float as derelicts for a time, increasing the cost?”  Marshall actively promoted the workers compensation movement in Wisconsin and helped draft the state’s compensation statute, which was enacted in 1911.

Constitutional Debate with Chief Justice Winslow

During the late Progressive era Marshall and John Winslow, the Court’s chief justice, engaged in a continuing debate over the proper interpretation of the federal and state constitutions in light of changing social needs.  Marshall argued that “preservation of liberty is given precedent over the establishment of government” and that courts must ensure that reform laws did not infringe it.  A reform law, he said, cannot “be conclusively legitimate merely because it promotes, however trifling in degree, public health, comfort, or convenience.” Winslow and Marshall continued their debate in a series of cases in which Winslow’s philosophy ultimately prevailed:
Marshall was defeated for reelection in 1917 largely because his decision in the Forestry Case was unpopular.  By the time Winslow died in 1920, his philosophy of flexible constitutionalism and adaptation to modern conditions was generally accepted in Wisconsin.  Several years later Walter Owen, the justice who replaced Marshall, stated for the Supreme Court that “It is thoroughly established in this country that the rights preserved to the individual by … constitutional provisions are held in subordination to the rights of society.”