Without Precedent

Description

From the author of Unlikely Allies and Indivisible comes the remarkable story of John Marshall who, as chief justice, statesman, and diplomat, played a pivotal role in the founding of the United States.
 
No member of America’s Founding Generation had a greater impact on the Constitution and the Supreme Court than John Marshall, and no one did more to preserve the delicate unity of the fledgling United States. From the nation’s founding in 1776 and for the next forty years, Marshall was at the center of every political battle. As Chief Justice of the United States—the longest-serving in history—he established the independence of the judiciary and the supremacy of the federal Constitution and courts. As the leading Federalist in Virginia, he rivaled his cousin Thomas Jefferson in influence. As a diplomat and secretary of state, he defended American sovereignty against France and Britain, counseled President John Adams, and supervised the construction of the city of Washington. D.C.

This is the astonishing true story of how a rough-cut frontiersman⁠—born in Virginia in 1755 and with little formal education—invented himself as one of the nation’s preeminent lawyers and politicians who then reinvented the Constitution to forge a stronger nation. Without Precedent is the engrossing account of the life and times of this exceptional man, who with cunning, imagination, and grace shaped America’s future as he held together the Supreme Court, the Constitution, and the country itself.Praise for Without Precedent:
 
“[Paul] has crafted a scholarly but highly readable and often entertaining chronicle that embeds Marshall among the leading lights of the nation’s founding generation, humanizing him along the way… [Marshall] is justly celebrated as the most far-sighted justice ever to lead the Supreme Court. His lasting achievements are ably served by Mr. Paul’s deeply felt and penetrating biography.” —Wall Street Journal

“Law professor Joel Richard Paul brings exactly the kind of perspective that a legal scholar can best provide to this engaging biography of US Supreme Court Justice John Marshall.” —Christian Science Monitor

“Engrossing… Paul brings to life Marshall’s seminal cases.” ­—The Weekly Standard

“[Paul] has added a well-written and admiring biography to the long line of Marshall scholarship.” —San Francisco Chronicle

“Compelling… Paul’s narrative excels when providing background details and the political context of Marshall’s famous decisions. Unlike many previous Marshall biographies, this book properly focuses on the practical circumstances that form the ground of Marshall’s decision-making.” —National Review

“[Paul] compellingly details the path that brought Marshall to the Supreme Court and how he was able to achieve so much while there in the absorbing and aptly titled Without Precedent… This engrossing account of a key figure in our early history makes for excellent reading.” —BookPage

“[A] comprehensive and insightful biography… Paul has produced an excellent treatment of an unquestionably impressive life.” —Publishers Weekly, starred review

“A well-informed, perceptive, and absorbing biography of a titan of American history.” —Kirkus Reviews, starred review

“This historical account of the longest-serving Chief Justice in the court’s history provides in-depth insight into the early days of the Supreme Court and Marshall’s lasting influence.” —Above The Law

“Paul offers an impressive biography on John Marshall, a politician and judge who became known as the nation’s most powerful Supreme Court justice during his run in the 1800s.” —Houston Chronicle
“In his engrossing biography of John Marshall, the fourth chief justice of the United States, Paul… makes a compelling case for Marshall’s enduring impact on the Constitution. With the verve that distinguished his previous book, [Unlikely Allies,]… Paul deftly evokes Marshall as a leader who imagined a dynamic interpretation of the Constitution.” —The National Book Review

“This very human story should be of great interest to almost all readers. Well written and drawing on rich primary sources, Without Precedent lives up to its title and will be an excellent addition to American-history collections.” —Booklist

“This masterly work elucidates the indelible imprint that Marshall made on the U.S. Constitution and its subsequent interpretation.” —Library Journal

“An examination of the life and work of John Marshall masterfully put into the context of his times. The echoes of his decisions as chief justice still reverberate in our era.” —San Francisco Chronicle

“Joel Richard Paul capably draws the reader into the factual and legal complexities involved in dozens of court cases without resorting to legalese… This comprehensive and insightful biography is mostly homage to this often-overlooked founder of our nation. But Paul does not ignore Marshall’s ‘blind spots’, his occasional faulty reasoning or compromised ethics. As a biographer, Paul exceptionally balances Marshall’s character development with his historic achievements in a very human story.” —The Missourian

“Paul capably frames the facts and the importance of the issues, as well as Marshall’s big picture thinking about the outcome. … This biography lives up to its title in that it provides the reader with a clear picture of who John Marshall was, how he grew as a leader and as a jurist, in a time when his nation was going through some growing pains of its own.” —Potus Geeks

“A highly entertaining and educational biography that should be on a lawyer’s reading list.” —Iowa Lawyer Magazine

“Anyone interested in the law and our country’s Founders will find this book revealing and enjoyable.” —Jill Abramson, former Executive Editor of The New York Times and co-author of Strange Justice
 
“You don’t have to be a constitutional law scholar to enjoy this lively, wonderfully engaging account of the life and times of Chief Justice John Marshall.” —William Taubman, Pulitzer Prize-winning author of Khrushchev: The Man and his Era and Gorbachev: His Life and Times

“Joel Richard Paul has written a fascinating and deeply authoritative biography of one of the most overlooked but important members of the founding generation. John Marshall was a lawyer, justice, and statesman, who as much as anyone else helped shape the nation’s court system and left a lasting imprint on our legal principles—and much more. Here, in Without Precedent, Marshall gets the attention he so justly deserves.” —Jay Winik, author of The Great Upheaval and 1944
 
“I would have predicted that there was nothing worth saying about John Marshall that hadn’t already been said. I would’ve been so wrong. In every chapter of this page-turning account of Marshall’s pivotal place in our nation’s history, even the expert will learn something new. How did Joel Paul figure out, for instance, that the great Chief Justice probably suborned perjury on his brother’s part during the bizarre Marbury v. Madison trial? You owe it to yourself to read Joel Paul’s terrific book to find out.” —Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School

“Who was John Marshall, really? Thousands meet him anew each year solely through his published opinions. But finally, Joel Richard Paul gives us this captivating, indispensable account, painting a fascinating picture of the frontiersman, soldier, illusionist, strategist, diplomat and international lawyer who became not just the man behind Marbury, but so much more.” —Harold Hongju Koh, Sterling Professor of International Law at Yale Law School

“Joel Richard Paul offers an engaging study of Marshall, both the man and the jurist… Anyone interested in the American founding and the man who, perhaps more than any other, guided the republic through its most formative years, will appreciate this book.” —Law360
Joel Richard Paul is a professor of constitutional and international law at the University of California Hastings Law School in San Francisco. He is the author of Unlikely Allies: How a Merchant, a Playwright and a Spy Saved the American Revolution, which was named one of the best books of 2009 by The Washington Post. He lives in northern California.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.

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. 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. “With regard to their military discipline,” Steuben noted, “I may safely say that no such thing existed.”

“The men had been left to perish by inches of cold and nakedness,” Washington admitted. Without adequate food, the soldiers baked “fire cakes” made out of flour and water on a hot stone placed in the hearth. In some cases, starving men roasted their leather shoes to provide one more meal. One officer complained that “Congress have let it in the power of the States to starve the Army at pleasure.” 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. Angry soldiers chanted, “No bread, no soldiers!” The local farmers refused to accept the nearly worthless Continental dollars. They preferred to sell food to the British soldiers for pounds sterling. 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.

The next day Steuben surveyed the troops with his large wolfhound, Azor, sniffing alongside. 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. Few soldiers owned more than one shirt, and many had none. More than 3,000 men were barefoot or partly naked. 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. 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. Most soldiers suffered from scabies or lice, which drove men to tear madly at their own flesh. 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.

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. While soldiers starved, the senior officers feasted on mutton and veal and toasted their commander’s health with General Washington’s favorite Madeira. Still, even the officers found the conditions intolerable. As many as fifty officers resigned their commissions in a single week. Washington suffered deprivations of his own: He complained to Congress that his servants were not dressed properly.

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. 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.

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.

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. 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.

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.

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. 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.” And Marshall credited Washington with saving the Continental Army from defeat.

Washington and Steuben gave Marshall an early lesson in two styles of leadership: Washington demanded unquestioning deference to authority while Steuben fostered collegiality. These two heroes came to represent the twin attributes of Marshall’s professional success: Marshall’s influence as a statesman and jurist derived from his ability to command respect for the authority of the law and his talent for finding common ground.

Given the immensity of the challenge of turning these untrained men into an effective fighting force, one might wonder why on earth Steuben did not return to the Prussian army. The truth was he couldn’t. Lieutenant General Baron Friedrich Wilhelm Ludolf Gerhard Augustin von Steuben was neither a general nor a Prussian baron. Though his maternal grandfather may have been a German noble, Steuben possessed neither a title nor a fortune. He never rose above the rank of captain in the army of Frederick the Great. His military career in the Prussian military was aborted in his early thirties when it was rumored that he preferred young boys. After his discharge from the Prussian army, Steuben could not find work and eventually ended up in Paris, where he met the French playwright Pierre Augustin Caron de Beaumarchais, who was engaged in selling arms to the Americans. Beaumarchais introduced the Prussian to two American commissioners, Silas Deane and Benjamin Franklin, to see if they could offer him a military commission. They were impressed with him, but Congress had already complained that they were commissioning too many foreign officers, which enflamed jealousy within the ranks of American officers. Deane and Franklin thought that all they could offer was to send Steuben to America without pay or rank. To make Steuben more salable to Congress, Deane and Franklin concocted an over-the-top twenty-year record of military service in combat as a lieutenant general, an aide-de-camp, and a quarter master general to Frederick the Great.

With his fictionalized curriculum vitae, Steuben was received by Americans as if he were a world-famous warrior. In Boston, John Hancock, the former president of the Continental Congress, gave a huge party in his honor for the leading citizens of the city. The Continental Congress set aside its collective suspicions of foreign mercenaries to welcome him warmly to York. Congress offered him a commission as a captain and agreed to pay him six hundred pounds annually for life if the revolution succeeded.

Steuben thought he had pulled off a great subterfuge until he arrived in Valley Forge and realized that Washington’s army was a far more extravagant deception: He was the one who had been fooled. But Steuben did not return to Europe. He and Azor had no place to return to. Instead, Steuben decided to make the best of a bad situation. He knew that reality often follows appearances. Marshall, too, learned that lesson early.

Valley Forge left an indelible mark on Marshall and laid the foundation of his political and legal career. He developed personal ties to Washington, Steuben, the Marquis de Lafayette, and Alexander Hamilton, among others, that served him well later in life. And the hardships at Valley Forge shaped his views about government. The Continental Congress and the thirteen state governments proved incapable of providing adequate support to the army. 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, he concluded.

Marshall was born in October 1755 in Germantown, Virginia, in what was then the western frontier and is now Fauquier County—about sixty miles southwest of Washington, D.C. He was the eldest of fifteen—seven boys and eight girls. For the first decade of his life, the family lived in a rough-hewn two-room log cabin. They wore homespun—a coarse handwoven fabric—farmed their rocky soil, and survived primarily on cornmeal mush. When Marshall was nearly ten, the family moved farther west to a valley known as the Hollow, now called Markham, in the shadow of the Blue Ridge Mountains. This is where he lived until age eighteen. He and his family shared a wood-framed two-room cabin measuring barely four hundred square feet with a half-story loft. There were few neighbors, and the nearest towns, Warrenton and Winchester, were more than twenty miles away, roughly a day’s trip on horseback. At a young age Marshall was schooled in the conservative values of self-reliance, individualism, and property ownership that shaped his jurisprudence.

Marshall’s father, Thomas, came from a modest background. Lord Fairfax, the largest landowner in Virginia, hired Thomas and his friend George Washington to survey Fairfax’s more than five million acres in the Northern Neck of Virginia. The two young men worked side by side surveying and selling plots. Fairfax then became the patron of the Marshall family, and Thomas slowly acquired more land. Before John Marshall turned eighteen, the family moved to a larger farm at Oak Hill, a short distance away. As Thomas prospered, he became a respected leader in Fauquier County. Eventually, he was elected to the House of Burgesses.

Marshall’s mother, Mary Keith, was descended from two of Virginia’s leading families, the Randolphs and the Ishams. She was the granddaughter of William and Mary Randolph, the “Adam and Eve” of colonial Virginia society. Marshall’s relation to the Randolphs was tainted by scandal, however. His maternal grandmother, Mary Isham Randolph, was a free spirit who could not be constrained. At sixteen she eloped with a poor Irish workman, with whom she had a child. Members of her family chased her down and allegedly killed her husband and child. The trauma caused Mary to suffer an emotional collapse. Later, she had an affair with an unsavory Scottish minister, James Keith, who was seventeen years older than she was. After they were caught in flagrante delicto, the Randolphs banished Keith from his parish. When Mary was old enough to marry Keith without her parents’ permission, she did so. The Randolphs refused to pay her dowry and cut Mary out of any inheritance. The cloud of scandal turned darker when rumors swirled that Mary’s first husband was, in fact, still alive, casting doubt both on the legality of her second marriage and the legitimacy of her eight children, including John Marshall’s mother. Perhaps as a consequence of this scandal, John Marshall rarely acknowledged his relationship to the Randolphs. His grandmother’s shame and the lack of a dowry undoubtedly made it more difficult for his mother to find a suitable husband.US

Additional information

Dimensions	1.2400 × 5.4700 × 8.2300 in
Imprint	Riverhead Books
ISBN-13	09780525533283
ISBN-10	0525533281
Author	Joel Richard Paul
Audience	General / adult
BISAC	HIS036030, LAW060000
Subjects	military history, law books for lawyers, legal history, judicial review, john marshall, historical biography, LAW060000, supreme court justices, supreme court books, supreme court, revolutionary war books, gifts for history buffs, revolutionary war, military history books, biographies of famous people, bio, American history books, american revolution, historical books, autobiographies, US history, biographies, founding father, law, founding fathers, biography, george washington, thomas jefferson, american history, HIS036030