Without Precedent Read online

  ALSO BY JOEL RICHARD PAUL

  Unlikely Allies

  RIVERHEAD BOOKS

  An imprint of Penguin Random House LLC

  375 Hudson Street

  New York, New York 10014

  Copyright © 2018 by Joel Richard Paul

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  Library of Congress Cataloging-in-Publication Data

  Names: Paul, Joel R., author.

  Title: Without precedent : John Marshall and his times / Joel Richard Paul.

  Description: New York : Riverhead Books, 2017. | Includes bibliographical references and index.

  Identifiers: LCCN 2017016049 (print) | LCCN 2017022497 (ebook) | ISBN 9780525533276 (eBook) | ISBN 9781594488238 (hardcover)

  Subjects: LCSH: Marshall, John, 1755–1835. | Judges—United States—Biography. | United States. Supreme Court—Biography

  Classification: LCC KF8745.M3 (ebook) | LCC KF8745.M3 P38 2017 (print) | DDC 347.73/2634 [B]—dc23

  LC record available at https://lccn.loc.gov/2017016049

  p. cm.

  Version_1

  For my friend and teacher Robert Gross

  and for Charles Uehrke, who kept me waiting

  CONTENTS

  Also by Joel Richard Paul

  Title Page

  Copyright

  Dedication

  Introduction

  1. The Frontier Soldier

  2. A Revolutionary Capital

  3. Debating the Constitution

  4. Slaves and Hypocrites

  5. Innocence Lost

  6. Citizen Genet

  7. Entangling Alliances

  8. Jay’s Treaty

  9. Talleyrand

  10. Not a Sixpence

  11. Love and War

  12. Tossed into the Seine

  13. The XYZ Papers

  14. The Jonathan Robbins Affair

  15. Privateers and Pirates

  16. The New Order of Things

  17. Showdown

  18. A Strategic Retreat

  19. Prizes of War

  20. High Crimes

  21. Treason

  22. Estrangement

  23. The Meaning of Sovereignty

  24. Washington Burning

  25. Friends and Enemies

  26. The Supreme Law

  27. The Pirate Lottery

  28. The Great Steamboat Case

  29. Public and Private

  30. Right Remains with the Strongest

  31. An Extravagant Pretense

  32. In the Conqueror’s Court

  33. A Union Prolonged by Miracles

  Acknowledgments

  Notes

  Selected Bibliography

  Index

  About the Author

  INTRODUCTION

  None of the founding generation of American leaders had a greater impact on the American Constitution than John Marshall, and no one did more than Marshall to preserve the delicate unity of the fledgling republic. As chief justice of the United States, Marshall led the Supreme Court for thirty-four years, longer than any other chief justice, and he single-handedly established its importance and supremacy in American life. What George Washington was to American politics, John Marshall was to American justice. Buffeted by political adversaries prepared to do almost anything to stop him, Marshall brilliantly outflanked his rivals. Against a torrent of forces that threatened to shatter the fragile union, Marshall defended his vision of a strong national government. Armed with nothing more than his eloquence and his gift for invention, Marshall triumphed against all odds.

  This is the story of the life and times of an exceptional man who mastered the art of self-invention and applied it to everything he did. At a time when all the leading southern statesmen—men such as Washington, Jefferson, Madison, Monroe, Randolph, Pinckney, and Lee—were wealthy patricians from prominent landholding families, Marshall grew up in a two-room log cabin shared with fourteen siblings on the hardscrabble frontier of Virginia. His only formal education consisted of one year of grammar school and six weeks of law school. Yet in the space of two decades he went from being a poor, unschooled frontiersman to become a military officer, an influential lawmaker, a successful attorney, a foreign diplomat, a national hero, Washington’s biographer, a congressman, secretary of state, and chief justice.

  How does a man from such modest beginnings reinvent himself so successfully? And how does a judge transform an insignificant and impotent court into a powerful coequal branch of the federal government and breathe meaning and life into an untested constitution?

  As a young officer at Valley Forge, Marshall witnessed how Generals George Washington and Baron von Steuben transformed the Continental Army from a hungry, bootless band of undisciplined and demoralized men into an effective fighting force by kindling faith in their fight. Marshall learned early from his experience in the Revolutionary War that reality sometimes follows appearances. Marshall loved the theater. Wherever he traveled, he attended performances frequently and often wrote about them. Perhaps the power of illusion and the possibilities of one actor playing multiple roles were what drew him to the stage. Marshall played many parts so well because he was at heart a master actor. In the end his gift for illusion transformed not only himself but the Court, the Constitution, and the nation as well.

  Later, while serving as a diplomat and secretary of state, Marshall negotiated on behalf of the United States when France, Britain, Spain, and the Barbary pirates threatened war. How does an infant nation lacking a powerful army or navy demand to negotiate as an equal with powerful adversaries such as France and Britain? Diplomacy was, in one of Marshall’s pet phrases, “an extravagant pretense.” But Marshall depended on this extravagant pretense to defend America’s territorial sovereignty and right to trade against the ambition of great powers. His diplomatic maneuvers successfully avoided war and maintained the country’s foreign commerce.

  President John Adams nominated Marshall as chief justice after a humiliating electoral defeat—and only after Adams’s preferred nominee for the post demurred. At that time the Supreme Court was regarded as nothing more than a constitutional afterthought. The Court had few cases, little dignity, and no genuine authority. In designing the new capital, no one had even planned a building to house the Supreme Court: It ended up in the basement of the U.S. Capitol. From the outset, Marshall confronted a hostile President Jefferson and a Republican Congress that plotted to impeach Marshall and much of the federal judiciary. Despite these impediments, Marshall established over the course of his tenure the principle of judicial review and elevated the dignity of the Supreme Court as the final arbiter of the Constitution’s meaning.

  During Marshall’s tenure from 1801 to 1835, the Court issued more than one thousand decisions—nearly all unanimous—and about half that number were written by Marshall. No other chief justice comes close to that record, and no Supreme Court before or since has issued even a majority of its decisions unanimously. What makes this record of unanimity even more incredible is that Marshall was a Federalist, and for his entire tenure, every Supreme Court justice was appointed by a Democratic-Republican president who opposed Marshall. Nonetheless, Marshall forged a consensus on nearly every i
ssue by sheer personality and intellect. His humanity and warm laughter helped to win over even the most resolute colleague. He rejected a strict construction of the Constitution and insisted on reading the Constitution broadly as a living document that responded to the needs and demands of a growing nation. Marshall envisioned a modern national economy under a strong federal government. He conceived virtually every foundational doctrine of constitutional law that has guided the United States for two centuries.

  While Marshall’s contributions to American constitutional law are well-known, his contributions to international law were just as important. On the Court, he confronted a stream of cases for which there were no clear rules or precedents. He was compelled to create new precedents. Cases involving pirates, slaves, and Indians were especially thorny, and Marshall continually crafted new doctrines for deciding these cases.

  For thirty-four years on the Supreme Court, Marshall resisted the centrifugal forces of regionalism and parochialism. He eschewed rigid ideology. His was a consistent voice for moderation, compromise, and pragmatism in the face of ideologues and adversaries. In an era without precedent, Marshall invented the legal principles that form the foundation of American constitutional and international law today. He defended the independence of the judiciary and the sanctity of property and contract. He jealously guarded the separation of powers. And he dared to imagine a dynamic interpretation of the Constitution that could accommodate the nation’s progress from a backward localized agrarian economy to a modern national industrial economy.

  In a revolutionary time, against myriad enemies both foreign and domestic, Marshall held the Court, the Constitution, and the union together.

  CHAPTER ONE

  THE FRONTIER SOLDIER

  Lieutenant General Baron von Steuben could not believe his eyes. At great risk and personal expense, he had traveled four thousand miles across the Atlantic from Prussia to join the Continental Army. Arriving at Valley Forge, Pennsylvania, in February 1778, he surveyed the desperate condition of this pathetic army with a mixture of alarm and disgust. He felt deceived.

  Under a gunmetal sky, he came on horseback from the town of York, eighty miles west, where Congress had fled after the British captured Philadelphia. After weeks of bitter cold, the weather had improved in late February, and the Schuylkill River had begun to melt. From a distance, Steuben could see one thousand cabins crowding the hills. Smoke curled out of a forest of chimneys. As he approached, Steuben could not discern in the waning light the crimson tracks left by barefoot soldiers. But he could not miss the stinking carcasses of horses lying in the snow.1

  General Washington met him on horseback outside the camp. The handsome, imposing Virginian and the plump Prussian with bulging lips and thick eyebrows rode side by side in awkward silence. Steuben, who was naturally ebullient, spoke French and German and very little English; Washington, who was characteristically reserved, spoke neither.2 It was an inauspicious beginning.

  Steuben soon realized that Washington’s army was a chimera. The Continental Army was melting away faster than the snow. He had expected to join a force of 40,000 men, but fewer than 14,000 remained and only half that were fit for duty. Nearly 7,000 were sick or not equipped to fight. Over the winter, nearly 2,500 men died from disease and around 15,000 deserted, sneaking across enemy lines into Philadelphia twenty miles southeast along the Schuylkill.3 “With regard to their military discipline,” Steuben noted, “I may safely say that no such thing existed.”4

  “The men had been left to perish by inches of cold and nakedness,” Washington admitted.5 Without adequate food, the soldiers baked “fire cakes” made out of flour and water on a hot stone placed in the hearth.6 In some cases, starving men roasted their leather shoes to provide one more meal.7 One officer complained that “Congress have let it in the power of the States to starve the Army at pleasure.”8 The camp needed 30,000 pounds of bread and an equivalent amount of meat daily. In addition, the men were promised a gill (four ounces) of whiskey a day. Rarely did the camp have anything approaching that amount.9 Angry soldiers chanted, “No bread, no soldiers!”10 The local farmers refused to accept the nearly worthless Continental dollars. They preferred to sell food to the British soldiers for pounds sterling.11 The situation was so desperate that Washington told his troops to steal whatever food they could find and “make an example” out of farmers who sold to the British.12

  The next day Steuben surveyed the troops with his large wolfhound, Azor, sniffing alongside.13 Half-naked men with skeletal bodies stared back in wonder at his well-fed figure in a smart Prussian blue tunic bedecked with medals. The men were awed by the general. “Never before, or since, have I had such an impression of the ancient fabled God of War,” wrote one young private.14 Few soldiers owned more than one shirt, and many had none. More than 3,000 men were barefoot or partly naked.15 France had sent the army tens of thousands of boots that were too small for most Americans, and those that fit fell apart after marches across hundreds of miles.16 The scarcity of supplies forced many to cannibalize what little they had. The lucky few who had blankets cut them into tents; the ones with tents sewed the fabric into shirts.17 Most soldiers suffered from scabies or lice, which drove men to tear madly at their own flesh.18 As Steuben inspected the troops, men stood shivering with open sores covering their bodies. Medical care was almost nonexistent. Thousands lay in camp hospitals without doctors, food, or drugs.19

  Given all this, Steuben could not be surprised at the poor morale. Nearly all the enlisted soldiers were in their teens and twenties; most were poor and more likely to be motivated by the promise of a steady wage than revolutionary ideology. Soldiers had been promised forty shillings a month in hard coin, but wages were paid irregularly in rapidly depreciating paper money instead. By the winter of 1777, the Continental dollar had lost more than three-quarters of its value. With it, soldiers could barely afford a cheap bottle of rum.20 While soldiers starved, the senior officers feasted on mutton and veal and toasted their commander’s health with General Washington’s favorite Madeira.21 Still, even the officers found the conditions intolerable.22 As many as fifty officers resigned their commissions in a single week.23 Washington suffered deprivations of his own: He complained to Congress that his servants were not dressed properly.24

  Amid this landscape of misery and disorder, one man seemed unaccountably upbeat. John Marshall was a twenty-two-year-old lieutenant from the Culpeper regiment of rural Virginia. Steuben’s roving eye could not have missed this handsome young man: Rail thin with a tangle of brown hair and intense dark eyes, and more than six feet tall, Marshall towered above his contemporaries. He had a rugged complexion; a round, friendly face; and an infectious grin. Long dangling arms and legs made him appear ungainly, yet he was exceptionally athletic. Harsh weather and small rations never dampened his humor and good spirits. When other officers groused about conditions, Marshall teased them until they had no choice but to laugh with him. He loved practical jokes, even at his own expense, and turned every mishap into an excuse for laughter. Once, when his bedding caught fire, Marshall made fun of his own clumsiness. He delighted in challenging other soldiers to games. He could jump farther than almost anyone, and he was a master at quoits, a popular game involving tossing a donut-shaped discus onto a stake.25 The men who served with Marshall loved him like a brother, and in all Marshall’s prolific writing years later, he hardly ever complained about the conditions at Valley Forge.

  Marshall impressed his superior officers with his even temper, fair-mindedness, and intelligence. Washington knew Marshall’s father and appointed Marshall deputy judge advocate even though he had no legal experience or education. As a judge advocate, Marshall arbitrated disputes between soldiers and litigated violations of Washington’s stern orders: Deserters and cowards were hanged, and even women living in the camp were flogged for minor infractions.26

  Marshall also paid attention to how Steuben quickly transformed the Continental Army
into a highly disciplined force by combining rigorous training with paternal affection. Steuben wrote the first regulations for the army, borrowing the best practices of the French and Prussian armies. Unlike with his Prussian soldiers, it was not enough to tell these Americans to do something; he had to explain why. Steuben decided to serve as drillmaster himself. He addressed the troops in a mix of German and French, and his translator, who had no familiarity with military terms, turned the general’s words into a mishmash of fragmentary English. He drilled them relentlessly with fast-paced, highly stylized routines adapted for the unconventional guerrilla warfare that Washington favored. Soldiers struggled to keep up. Even when Steuben lost his patience with them and swore at them in a jumble of German and baby English, they found him endearing.27

  Within a month, Steuben had transformed the ragtag shadow of an army into a disciplined fighting force. He reorganized the army into provisional regiments, reformed the quartermaster’s office, improved sanitation and medical care, and demanded better food and uniforms. No one had done more to build the Continental Army, and Washington appointed the Prussian inspector general with the rank of major general.28 At the same time, Steuben, like Marshall, appealed to the soldiers’ sense of fun. He served the officers flaming whiskey drinks and organized costume parties that lampooned their conditions.29

  * * *

  —

  MARSHALL WORKED CLOSELY WITH STEUBEN, and the two forged a great friendship. Marshall thought that Steuben and Washington, as different as they were, complemented each other. Steuben formed intense emotional relationships with his soldiers and insisted that his officers bond with their men as well. And Steuben’s affection was reciprocated by officers and enlisted men alike.30

  Steuben’s unconditional love could not have been less like Washington’s reserve. To his men, Washington was a remote father figure who demanded respect and discipline. He had a rigid sense of hierarchy and propriety. Officers were punished just for eating with enlisted men.31 Still, Marshall thought that Washington was “the greatest Man on earth.” He later wrote, “When I speak or think of that superior Man my full heart overflows with gratitude.”32 And Marshall credited Washington with saving the Continental Army from defeat.33