In October 1797, 42-year-old John Marshall arrived in Paris with Charles Pinckney and Elbridge Gerry, the three of them constituting an official American commission charged with defusing tensions arising from the larger war between England and France. Both belligerents were seizing American ships thought to be trading with the enemy, and relations between the Jeffersonian Republicans, who favored the French, and the Federalists and President John Adams, who tilted British, were growing more acrimonious. The commission was to meet Talleyrand, the French foreign minister, who embodied both the ancien régime and the new revolutionary fervor (though his greatest cause was himself). He was well educated, rich, and powerful. John Marshall, by contrast, was a backwoods Virginian with little more than a year of formal education. This was his first trip outside America.
But Marshall was no stripling. He had fought with Washington and served during the harsh winter at Valley Forge, where he was known for his good humor and energy when the Continental Army was at perhaps its lowest point. (It is still shocking to read that the troops stayed that winter without being paid or adequately fed and with many lacking shoes.) He led the fight to ratify the Constitution in Virginia, along with his friend James Madison, against the giants of the Virginia elite, Patrick Henry and George Mason.
Still, nothing in Marshall’s experience could have quite prepared him for the bizarre diplomatic dancing he experienced in Paris, the scorn and schemes of Talleyrand and his associates. In the end, after many weeks of resisting Talleyrand’s blandishments and threats, Marshall and Pinckney returned emptyhanded to the United States. (Gerry stayed behind at Talley-rand’s demand.) When the commission’s correspondence from France was produced to Congress in what became known as the XYZ Affair—those letters standing in for the names of the French diplomats—Talleyrand’s poor behavior was revealed: arrogance, bullying, badgering for huge bribes. The revelations turned American opinion decisively against France and contributed to President Adams’s decision to appoint Marshall secretary of state.
The encounter with Talleyrand and France appears about a third of the way through the engrossing new biography of Marshall by Joel Richard Paul, a professor at the University of California’s Hastings School of Law. Just when you think we have reached Founders overload, they continue to astonish. Marshall is best remembered today for his three decades as chief justice of the United States, a position he assumed in 1801; he was the last chief justice to be born before America proclaimed its independence. Marshall was a cousin of Thomas Jefferson but unlike Jefferson was born poor. Indeed, as Paul discusses, their common ancestor William Randolph disinherited Marshall’s family in favor of Jefferson’s because of family scandal; therefore, as a recipient of the Randolph fortune, Jefferson “enjoyed enormous privilege and wealth” while Marshall scrambled on the frontier, one of his parents’ 15 children. Nevertheless, his father, through an association with Lord Fairfax, a large Virginia landowner, eventually prospered, and young John took advantage of a substantial library in Lord Fairfax’s Virginia home. Despite his lack of formal education, Marshall became a lawyer and quickly established himself among the prominent men of Richmond in the years leading up to the revolution.
As Paul notes, this background inculcated in Marshall a very American sense of equality:
Jefferson, in contrast, comes across as snobbish, opportunistic instead of principled, and ineffectual. (Paul’s account of Jefferson’s ignominious abandonment of Richmond during the Revolutionary War when he was governor of Virginia should dent his reputation.) Marshall’s long history with Jefferson is a thread that runs through the book, for not only was there family controversy but the two disagreed on most every issue they were to face in the succeeding decades—not the least of which was the Aaron Burr treason trial in 1807. In those days, Supreme Court justices still “rode the circuit” and it fell to Marshall to preside over the spectacle of the Burr trial in Richmond. During those proceedings Marshall resisted Jefferson’s overreach (and likely dishonesty) and rejected the prosecution’s hazy evidence of treason.
Marshall’s understanding of the proper role of the federal government was shaped by his experiences before his 1801 appointment as chief justice. As a Federalist, and like his sometime ally Alexander Hamilton, Marshall believed the central government needed to be strong enough to act in the national interest. As Paul explains, what Marshall witnessed during the war profoundly affected him: “The near collapse of the army convinced Marshall that the Articles of Confederation were unworkable. Only a strong central government with the power to tax, regulate commerce, and raise an army could defend the nation effectively.”
As chief justice, Marshall established the Supreme Court as a truly coequal branch of government and decided cases in favor of a broad interpretation of the Constitution and the Court’s powers. The impress he left upon the Court and judicial practice is not unlike that made by his hero Washington upon the presidency. Paul brings to life Marshall’s seminal cases, especially Marbury v. Madison (1803), the crucial case that confirmed the practice of judicial review; McCulloch v. Maryland (1819); Cohens v. Virginia (1821); and Gibbons v. Ogden (1824). Taken together, these cases asserted federal supremacy over the states. In Cohens, Marshall ruled that the Supreme Court had jurisdiction to review a criminal conviction involving the sale of lottery tickets. He wrote that
But having established the principle, Marshall upheld the ability of Virginia to prohibit lottery sales in the state, and so also the conviction of the Cohens. In Gibbons, involving the rights of steamships in state waters, Marshall found that such state laws were inconsistent with the supremacy and commerce clauses of the Constitution.
Marshall was also adroit in dealing with the vicious Cherokee-nation policies of Andrew Jackson’s administration. Paul makes a strong case that although Marshall was not free from prejudice his three decisions on relations with the Native American tribes were a principled effort to preserve their sovereignty against incursion by the states and hostility from the federal government.
Paul is similarly persuasive on Marshall and slavery. Marshall owned slaves in Richmond, although he was never a plantation owner and he believed that slavery would have to come to an end, preferably gradually. He agitated for reforms to the system of slavery, including making manumission easier, and as a lawyer he defended slaves pro bono against their masters. Paul notes Marshall’s close relationship with his valet, Spurlock, who managed Marshall’s household. The chief justice’s decisions upholding national sovereignty were rightly seen by Southerners as an attack on their ability to protect the “peculiar institution”; unfortunately, Marshall was succeeded by Roger Taney, who had a different view. Chief Justice Taney would argue, in the infamous Dred Scott decision, that the federal Constitution could not countenance blacks as free citizens, leaving it to states to regulate slavery.
Paul does not shy away from criticism when he feels Marshall was simply inventing legal doctrine or was not a neutral judge—as in several land cases over which he presided despite having a personal interest, and even in Marbury, where Marshall signed the very commissions that were at issue before the Court. Nevertheless, Marshall comes off as a principled jurist in a deeply polarizing time.
In synthesizing existing scholarship and a fair amount of archival work, Paul does not break much new ground in Without Precedent. But he presents a very personable and accessible Marshall. Less effete than Jefferson, less aristocratic than Adams, and less haughty than Hamilton, Marshall was known for his friendships and for an earthiness that brings to mind Abe Lincoln. As Paul also notes, Marshall’s life, again like Lincoln’s, was marked by his great love and devotion for his wife, Polly, who suffered from various ailments and was frequently bedridden, a trial for the often-traveling and fun-loving Marshall; less evident here are Marshall’s relations with his children, though Paul is clear on the influence Marshall’s own father had on him.
Marshall’s last years were marked by increasing tension with President Jackson and the loss of several children and friends. He still tried to sit circuit in Richmond in 1834-35 before he was forced to travel to Philadelphia for medical help and kept bedridden by complications from a spine injury and liver abscesses. When Marshall died in July 1835, “the nation mourned the loss of the chief justice with the kind of somber ceremony and affection that it had mourned Washington,” with overflowing eulogies and a massive funeral procession in Philadelphia. Paul closes with an assessment of Marshall compared with his great antagonist Jefferson and concludes that despite his flaws, Marshall’s overarching goal was a worthy one: preservation of the union, sought through compromise when possible and imagination when necessary.
Gerald J. Russello is editor of the University Bookman.
