But Marshall’s inconsistency and his failure to follow his own moral instincts were not symptoms of intellectual dishonesty. Time and again Marshall acted to forge consensus on the Court and avert constitutional crises. Marshall tried to persuade his brethren to his point of view when he could, and when he could not, he sought common ground. Marshall did not see compromise or pragmatism as a moral failing. Nor should we. Compromise and pragmatism made possible the Union.
Chief Justice Marshall lived in a revolutionary age in which the country was deeply polarized by competing ideologies. The politics of his day were every bit as negative and ruthless as the politics of our own time. Though he did not have the benefit of precedent, Marshall creatively navigated his way through a thicket of domestic and international controversies, choosing his battles prudently and forging consensus where none seemed possible. Though the Revolutionary generation was governed by certain rules of civility—rules that have since been forgotten—men were no less mean-spirited, petty, jealous, avaricious, or corruptible than in our own time.
Democracy requires practical jurists and statesmen who prefer compromise to chaos and who understand that the single-minded pursuit of one’s own ideology at the expense of all else is the path to civil war.
More than any other American, John Marshall set the foundations of the Republic that have guided the nation for more than two centuries. He had the courage of his imagination, the wisdom to find common ground, and the grace to hold together a fragile union. With his passing, who would save the Union now?
ACKNOWLEDGMENTS
I am grateful for the research support I received from the University of California Hastings College of the Law, especially from my librarian, Vince Moyer, and his colleagues who worked tirelessly over seven years gathering materials for this book. I was fortunate to have the assistance of student researchers, including George Croton, Noah Glazier, Greg Greenberg, Ken Laslavic, Scott Malzahn, Robert Moutrie, and Nick Smith. Special thanks go to Michelle Hernandez, Serena Salem, Drew Stark, Daniel Wilson, and Jakob Zollmann, who helped with translating, gathering materials at the Bibliothèque Nationale de France and the Archives Nationales, and reading hundreds of documents and newspaper accounts.
I am also grateful for the assistance of Catherine Dean and Jennifer Hurst on the staff of Preservation Virginia at the John Marshall House in Richmond; Thomas Lester at the Massachusetts Historical Society; Jennifer Harbster at the Library of Congress; James Cronan at the British National Archives; Phyllis Scott at the Fauquier County Records Office; and the staffs of the British Library, the British National Archives, the Doe Memorial Library at the University of California at Berkeley, the Harvard Law School and Widener Libraries, the Library of Congress, the New York Public Library, the San Francisco Public Library, the South Caroliniana Library at the University of South Carolina, and the Virginia State Library.
I also appreciate the contributions of my friends and colleagues who read drafts, filled gaps in my knowledge, and supported my work, in particular Paul Aron, Lucinda Eubanks, Chimène Keitner, Elise Kroeber, Nell Jessup Newton, Zach Price, Margaret Russell, Reuel Schiller, and Joan Williams.
I am especially indebted to my friend and teacher Professor Robert A. Gross for his generous feedback on an earlier draft. He has inspired me throughout my career.
Of course, this book would not be possible without the help of my literary agent, Roger Williams, and my editor and friend, Jake Morrissey, and his colleagues at Riverhead Books.
Finally, my special thanks for the encouragement of my friends and family, in particular Jane Shulman, Rick Steele, and Charles Uerhke. I am blessed having each of you in my life.
NOTES
CHAPTER 1. THE FRONTIER SOLDIER
1Thomas Fleming, Washington’s Secret War: The Hidden History of Valley Forge (New York: HarperCollins, 2005), 180.
2Paul Lockhart, The Drillmaster of Valley Forge: The Baron de Steuben and the Making of the American Army (New York: HarperCollins, 2008), 73–74.
3Charles H. Lesser, The Sinews of Independence (Chicago: University of Chicago Press, 1976), 59; Fleming, Secret War, 15, 30, 214, 263.
4James R. Gaines, For Liberty and Glory: Washington, Lafayette, and Their Revolutions (New York: W. W. Norton, 2007), 104.
5Louis Clinton Hatch, The Administration of the American Revolutionary Army (New York: Longmans, Green, and Co., 1904), 93.
6Ron Chernow, Washington: A Life (New York: The Penguin Press, 2010), 325.
7Hatch, Administration, 92.
8E. Wayne Carp, To Starve the Army at Pleasure: Continental Army Administration and American Political Culture, 1775–1783 (Chapel Hill: University of North Carolina Press, 1984), 179.
9Fleming, Secret War, 134.
10Chernow, Washington, 326.
11John R. Alden, A History of the American Revolution (New York: Da Capo Press, 1969), 300.
12Fleming, Secret War, 186, as quoted in Chernow, Washington, 329.
13There is some disagreement about Azor’s breed, which some sources refer to as an Italian greyhound. However, that seems unlikely since Azor was described as much larger than an Italian greyhound would ordinarily have been. Lockhart, Drillmaster, 49.
14Joseph H. Jones, ed., The Life of Ashbel Green, V.D.M., as quoted in Benson Bobrick, Angel in the Whirlwind (New York: Penguin Books, 1997), 333.
15James Thomas Flexner, George Washington in the American Revolution (1775–1783) (Boston: Little, Brown, 1968), 261; Fleming, Secret War, 214.
16Flexner, Washington in the American Revolution, 262.
17Fleming, Secret War, 14.
18Fleming, Secret War, 22–24, 160; Chernow, Washington, 325.
19Fleming, Secret War, 137.
20Fleming, Secret War, 131–133; Alden, American Revolution, 446.
21Fleming, Secret War, 33.
22Flexner, Washington in the American Revolution, 260; Gaines, For Liberty, 96.
23Fleming, Secret War, 163, 263.
24Flexner, Washington in the American Revolution, 282.
25Albert J. Beveridge, The Life of John Marshall (Boston: Houghton Mifflin, 1916), 1:118–119; Joseph J. Ellis, His Excellency: George Washington (New York, Alfred A. Knopf, 2004), 112–118; Jane Carson, Colonial Virginians at Play (Williamsburg: University Press of Virginia, 1965), 180–182; Jean Edward Smith, John Marshall: Definer of a Nation (New York: Henry Holt, 1996), 64.
26Gaines, For Liberty, 104; Beveridge, Marshall, 1:119–120.
27Alden, American Revolution, 390; Fleming, Secret War, 217–222, 229; Lockhart, Drillmaster, 108–113.
28Fleming, Secret War, 230, 263–277.
29Fleming, Secret War, 222, 233.
30John Marshall, The Life of George Washington (New York: Walton Book Company, 1930) 1:268–269; Smith, Marshall, 65–66, 82–85; Gaines, For Liberty, 105.
31Beveridge, Marshall, 1: 119–120; Lockhart, Drillmaster, 21; Marshall, Life of George Washington, 1:254.
32Marshall to James Monroe, Jan. 3, 1784, in Charles F. Hobson, Herbert A. Johnson, Charles T. Cullen, and Nancy G. Harris, eds., The Papers of John Marshall (Chapel Hill: University of North Carolina Press, 1974–2006) 1:113 (hereafter cited as MP).
33Marshall, Life of George Washington, 1:408–419, 2:66–67.
34Lockhart, Drillmaster, 42–43; William E. Benemann, Male-Male Intimacy in Early America: Beyond Romantic Friendship (New York: Routledge, 2012), 102–106. Steuben, who never married or expressed an interest in women, lavished his attention on younger men. At Valley Forge he formed a particularly close bond with his aide, Captain Benjamin Walker, whom he called his “angel.”
35Lockhart, Drillmaster, 44–49.
36Lockhart, Drillmaster, 53, 65–66.
37Smith, Marshall, 29.
38Beveridge, Marshall, 1:33–56.
39Smith, Marshall, 24–25.
40Beveridge, Marshall, 1:12–18; Smith, Marshall, 29–30; Dumas Malone, Jefferson the Virginian (Charlottesville: University of Virginia Press, 1948), 10–20.
41John Marshall, An Autobiographical Sketch, ed. John Stokes Adams (Ann Arbor: University of Michigan Press, 1991), xx, 4; Beveridge, Marshall, 1:18, 53–57.
42Marshall, Autobiographical Sketch, 4.
43Smith, Marshall, 35.
44Marshall, Autobiographical Sketch, xix.
45Michael A. McDonnell, The Politics of War: Race, Class, and Conflict in Revolutionary Virginia (Chapel Hill: University of North Carolina Press, 2007), 24–29.
46Beveridge, Marshall, 1:60–61.
47Jack P. Greene, Political Life in Eighteenth-Century Virginia (Williamsburg, VA: Colonial Williamsburg Foundation, 1986), 10, 45–46; John Selby, The Revolution in Virginia, 1775–1783 (Williamsburg, VA: Colonial Williamsburg Foundation, 1988), 30, 33, 39.
48Edwin S. Gaustad, Revival, Revolution, and Religion in Early Virginia (Williamsburg, VA: Colonial Williamsburg Foundation, 1994), 16–19, 23–27; Selby, Revolution in Virginia, 33–35, 154–157.
49Selby, Revolution in Virginia, 15–16, 21–22; Greene, Political Life, 29–31.
50Rhys Isaac, The Transformation of Virginia: 1740–1790 (Chapel Hill: University of North Carolina Press, 1982), 137.
51McDonnell, Politics of War, 47–49.
52Selby, Revolution in Virginia, 1–5.
53Selby, Revolution in Virginia, 7–8, 41–43, 66–67.
54Beveridge, Marshall, 1:67–68; R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge: Louisiana State University Press, 2001), 2–3; Smith, Marshall, 44.
55Isaac, Transformation, 256–258; Smith, Marshall, 45–46.
56Smith, Marshall, 47–51.
57Marshall, Life of George Washington, 1:82.
CHAPTER 2. A REVOLUTIONARY CAPITAL
1Marianne Buroff Sheldon, “Black-White Relations in Richmond, Virginia: 1782–1820,” The Journal of Southern History 45, no. 1 (February 1979): 27–29.
2Harry M. Ward and Harold E. Greer Jr., Richmond During the Revolution: 1775–1783 (Charlottesville: University Press of Virginia, 1977), 8–10, 16; Beveridge, Marshall, 1:171; Frances Norton Mason, My Dearest Polly: Letters of Chief Justice Marshal to His Wife, with Their Background, Political and Domestic, 1779–1831 (Richmond, VA: Garrett & Massie, 1961), 13; Smith, Marshall, 88.
3Alf J. Mapp, Jr., Thomas Jefferson: A Strange Case of Mistaken Identity (New York: Madison Books, 1987), 133, 140; R. B. Bernstein, Thomas Jefferson (New York: Oxford University Press, 2003), 45; Selby, Revolution in Virginia, 236, citing Julian Boyd, Charles Cullen, John Catanzariti, and Barbara Oberg, eds., The Papers of Thomas Jefferson (Princeton, NJ: Princeton University Press, 1950), 1:602–603.
4Selby, Revolution in Virginia, 236; Mapp, Jefferson, 133, 140; Bernstein, Jefferson, 45.
5Mapp, Jefferson, 140; Selby, Revolution in Virginia, 235–236, 246; Ward and Greer, Richmond During the Revolution, 38.
6Marshall, Autobiographical Sketch, 5–6; Beveridge, Marshall, 1:151–153.
7Law notes, MP, 1:37–41; Smith, Marshall, 17–18.
8Beveridge, Marshall, 1:41, 154; Law notes, MP, 1:39.
9Smith, Marshall, 82.
10Jon Meacham, Thomas Jefferson: The Art of Power (New York Random House Trade Paperbacks, 2013), 133–136; Ward and Greer, Richmond During the Revolution, 80–81; Smith, Marshall, 83.
11Meacham, Jefferson, 137–138; Mapp, Jefferson, 141–156; Ward and Greer, Richmond During the Revolution, 82.
12Beveridge, Marshall, 1:153, 165; Mason, My Dearest Polly, 19; Smith, Marshall, 85.
13Beveridge, Marshall, 1:166–167, 171.
14Harry Ammon, James Monroe: The Quest for National Identity (Charlottesville: University of Virginia Press, 1990), 37–38, 45.
15Randolph to James Madison, Nov. 29, 1782, in Smith, Marshall, 92.
16Pendleton to James Madison, Nov. 25, 1782, in David John Mays, ed., The Letters and Papers of Edmund Pendleton, 1734–1803 (Charlottesville: University Press of Virginia, 1967), 1:429.
17Beveridge, Marshall, 1:203–209.
18Harry M. Ward, Public Executions in Richmond, Virginia: 1782–1907 (Jefferson, NC: McFarland & Co., 2012), 17–19.
19Smith, Marshall, 95–96.
20Ward and Greer, Richmond During the Revolution, 108.
21Joseph Jones to James Monroe, April 15, 1785, in Daniel Preston and Marlena C. DeLong, eds., The Papers of James Monroe: Selected Correspondence and Papers, 1776–1794 (Westport, CT: Greenwood Press, 2006), 2:207.
22Charles F. Hobson, “The Recovery of British Debts in the Federal Circuit Courts of Virginia, 1790 to 1797,” Virginia Magazine of History and Biography 92, no. 2 (April 1984): 183–185; Newmyer, Marshall, 96; Smith, Marshall, 155.
23Newmyer, Marshall, 96–97.
24Beveridge, Marshall, 1:183; Smith, Marshall, 104; Jean Edward Smith, “Marshall Misconstrued: Activist? Partisan? Reactionary?” John Marshall Law Review 33, no. 4 (2000): 1122; Newmyer, Marshall, 34–35.
25Beveridge, Marshall, 1:198; Mason, My Dearest Polly, 41–43, 57–61; Smith, Marshall, 107.
26Margaret Good Myers, A Financial History of the United States (New York: Columbia University Press, 1970), 40; E. James Ferguson, The Power of the Purse: A History of American Public Finance, 1776–1790 (Chapel Hill: University of North Carolina Press), 242–243.
27Ferguson, Power of the Purse, 238–244, citing Worcester Magazine (July 1787), 3.
28Patrick T. Conley, “Rhode Island: Laboratory for the Lively Experiment,” in Patrick T. Conley and John P. Kaminksi, eds., The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties (Madison, WI: Madison House Publishers, 1992), 124–160.
29Marshall, Life of George Washington, 2:137.
30David P. Szatmary, Shays’ Rebellion: The Making of an Agrarian Insurrection (Amherst: University of Massachusetts Press, 1980), 19–20, 66; Robert A. Gross, ed., In Debt to Shays: The Bicentennial of an Agrarian Rebellion (Charlottesville: University Press of Virginia, 1993), 7–8.
31Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle (Philadelphia: University of Pennsylvania Press, 2002), 7–61; Gross, In Debt to Shays, 3.
32Richards, Shays’s Rebellion, 116–117.
33Samuel E. Morison and Henry S. Commager, The Growth of the American Republic (New York: Oxford University Press, 1962), 1:272–276.
34Marshall to James Wilkinson, Jan. 5, 1787, in MP, 1:200–201.
CHAPTER 3. DEBATING THE CONSTITUTION
1Account book, MP, 1:409; Smith, Marshall, 122–124.
2Newmyer, Marshall, 50–51.
3John P. Kaminski, Gaspare J. Saladino, et al., eds, The Documentary History of the Ratification of the Constitution by the States: Virginia (Madison: Wisconsin Historical Society Press, 1990), 9:897.
4Smith, Marshall, 122–123; Hugh Blair Grigsby, The History of the Virginia Federal Convention of 1788 (New York: Da Capo Press, 1969), 1:25–26; Mason, My Dearest Polly, 51; Newmyer, Marshall, 54.
5Ralph Ketcham, James Madison: A Biography (Charlottesville: University Press of Virginia, 1990), 51–52, 89; Richard Brookhiser, James Madison (New York: Basic Books, 2011), 4.
6Baron v. Baltimore, 32 U.S. 243, 250 (1833).
7Washington to Lafayette, April 1, 1788, in Kaminski et al., eds., Documentary History, 9:768.
8Ellis, His Excellency, 180–183; Chernow, Washington, 543–547.
9Dumas Malone, Jefferson and the Rights of Man (Boston: Little, Brown and Co., 1951), 164–169.
10Jefferson to John Adams, Nov. 13, 1787, in Boyd, ed., Papers of Jefferson, 12:349.
11Jefferson to W. S. Smith, Nov. 13, 1787, in Paul Leicester Ford, ed., The Writings of Thomas Jefferson (New York: G. P. P
utnam’s Sons, 1909), 4:466–467.
12Malone, Jefferson and the Rights of Man, 171–178.
13Jeff Broadwater, James Madison: A Son of Virginia and a Founder of the Nation (Chapel Hill: University of North Carolina Press, 2012), 70.
14Ketcham, Madison, 254; Grigsby, Virginia Federal Convention, 1:67–68.
15Newmyer, Marshall, 52, citing Henry, June 5, 1788, in Kaminski et al., eds., Documentary History 9:962.
16Jack N. Rakove, James Madison and the Creation of the American Republic (New York: Longman, 2002), 88–89.
17Rakove, Madison, 88–89; Broadwater, Madison, 70; Ketcham, Madison, 258–259.
18Bernard Bailyn, ed., The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification (New York: Library of America, 1993), 2:596.
19Grigsby, Virginia Federal Convention, 1:157; Newmyer, Marshall, 53.
20Grigsby, Virginia Federal Convention, 1:176, 181–183.
21Monroe to Thomas Jefferson, July 12, 1788, as quoted in Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster Paperbacks, 2010), 310.
22Speech, June 10, 1788, MP, 1:260–262.
23Speech, June 20, 1788, MP, 1:276–277; Marbury v. Madison, 5 U.S. 137 (1803).
24Smith, Marshall, 133–134; Ward and Greer, Richmond During the Revolution, 51.
25Ketcham, Madison, 263.
26Speech by Patrick Henry, June 24, 1788, Virginia Ratifying Convention, http://www.constitution.org/rc/rat_va_20.htm. accessed June 30, 2012.
27Monroe to Thomas Jefferson, July 12, 1788, in Boyd, ed., Papers of Thomas Jefferson, 13:351–354.
28Grigsby, Virginia Federal Convention, 1:319–320, n241.
29Kaminski et al., eds., Documentary History, 9:951.
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