Joel Richard Paul

"Reading history teaches us to doubt, to question, and, if we're lucky, to discover new heroes."

So writes Joel Richard Paul at the conclusion of this fascinating book that sheds light on a little-known episode in the history of the American Revolution. While several of the best-known of America's founding fathers represented the new United States of America at the court of its first and principal ally, the regime of Louis XVI (Adams, Franklin and Jefferson, to name only a few), the real hero show more of Paul's narrative is Connecticut merchant Silas Deane who impoverished himself in the service of his country, only to fall victim to political infighting.

The subtitle of the book doesn't really reflect its focus, which is primarily on Deane and his relationship with the playwright Beaumarchais (author of the Marriage of Figaro and the Barber of Seville), who helped him covertly procure and finance arms shipments to the United States in the months leading up to and following the declaration of independence, when the French government was wary of violating its recent peace agreement with Britain by supporting rebellious colonials. Deane, isolated in Paris, worked with Beaumarchais and shipped the goods to the US that led to the turning point of the war, the capture of Burgoyne's army. (The spy of the title is the cross-dressing Chevalier d'Eon, whose life, while intriguing, is peripheral to the main story; (s)he played no direct role in supporting the revolution.

Paul has a real knack for making history spring alive -- I can almost see Deane's traitorous assistant sneaking into a Parisian park to place copies of his correspondence in a bottle where English spies could later retrieve them, or Benjamin Franklin lounging in his bath at the seedy boat/bath on the Seine. He's obviously passionate about restoring Deane to his rightful place among the pantheon of Revolutionary war heroes (and doesn't mind if he puts a dent in the halos of a few others in the process) but he makes a compelling case.

I'm hoping that this is the first of many books by Paul; it's hard to go back over such well-trodden ground and emerge with a story that is so vivid, exciting and fresh. This is a must-read for anyone with an interest in the American Revolution, and it also offers an intriguing look at the machinations of power politics in Europe in the 1760s and 1770s. I'd sign up for any history class offered by Paul, if he didn't teach on the other side of the continent, that is... show less

This is yet another book that, while focused primarily on John Marshall, compares the legacies Marshall with his political rival, Thomas Jefferson. Both men made essential contributions to the early republic. And like every other historian I have read, in this author’s assessment, Marshall was the better man.

Joel Richard Paul studied at Amherst College, the London School of Economics, Harvard Law School, and the Fletcher School of Law and Diplomacy. He teaches international economic law, show more foreign relations, and constitutional law at the University of California Hastings Law School, serving as the Associate Dean at the time of publication. He provides an astute analysis of John Marshall’s greatest cases, and does not hesitate to point out instances when Marshall “was no purer than his contemporaries.” Yet he clearly finds much to admire about John Marshall.

As he notes in his 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."

This was done by a man whose only formal education was one year of grammar school and six weeks of law school! Yet this self-taught man went on to exhibit not only a wide-ranging erudition but a sense of honesty and decency that won over even those who began as his opponents. (The exception of course was the intractable Jefferson, who saw Marshall as standing in the path of Jefferson’s control of all branches of government.) Marshall’s special forte was the art of compromise, which he employed both as a diplomat in France, and on the court which he led for thirty-four years, longer than any other chief justice. More critically, he single-handedly established the court’s importance and supremacy in American life.

Marshall was born on September 24, 1755 in Germantown, Virginia, the eldest of fifteen children. His mother was a first cousin of Thomas Jefferson’s mother but the families were not close. Because of a scandal involving Marshall’s maternal grandmother, the Marshall side of the family was disinherited, and Jefferson’s family got most of the wealth. As Paul observes:

"As a result, Thomas Jefferson grew up at Tuckahoe with five hundred slaves. There he enjoyed enormous privilege and wealth. His cousin John Marshall and his fourteen siblings grew up on the frontier working the stony soil on their father’s modest farm."

Paul avers that Marshall grew up without resentment; rather, he moved fluidly between classes and had the confidence to believe he could elevate his station. Unlike Jefferson, who grew up with education, advantages, and was groomed for leadership, Marshall had to rely on determination and self-invention. His upbringing also provided him with more compassion than Jefferson, and a more generous and humane nature. Paul opined:

"Though Marshall belonged to the party of elites, he practiced republicanism in his everyday life. By contrast, Jefferson preached democracy but lived more like the European aristocrats he despised.(p. 235)”

Jefferson, in Marshall's view, as Paul contends, “lacked genuine empathy and embodied precisely the kind of elitism that he attacked in theory. He could never be trusted to act in the interests of the nation.”

When President John Adams nominated Marshall to be Chief Justice right before he ceded the presidency to Thomas Jefferson, “the Supreme Court was regarded as nothing more than a constitutional afterthought.”

Jefferson and the Republican Congress wanted to emasculate the judiciary, and took numerous steps (only some of which were successful) to do so. But by the time Marshall’s tenure ended in 1835, he had “elevated the dignity of the Supreme Court as the final arbiter of the Constitution’s meaning.”

Importantly, Marshall was able to win over the other justices on the court, even those appointed by Jefferson specifically to oppose Marshall. Paul posits that Marshall’s collegiality as well as “sheer personality and intellect” won over “even the most resolute colleague.”

How he did this - and sometimes he acted less than exemplary in his efforts to outwit the attacks on judicial independence and rule of law by Thomas Jefferson and later Andrew Jackson - is the subject of Paul’s book. Paul tells the story mostly through an explication of the cases that came before the court, because the fact was that many of them represented competing visions of power between Jefferson and Marshall.

I was especially surprised to learn about Marshall’s sneaky manipulation in seminal cases like Marbury vs. Madison, but I believe, as Marshall seems to have done, that the end justified the means. In any event, Marshall was no less sneaky and manipulative than Jefferson, but Marshall, in my view, was more often on “the side of the angels.”

Paul informs us that prior to Marshall’s tenure, each justice issued his own individual opinion seriatim. Marshall thought that the Court’s authority would be more persuasive and the law more clarified if he could forge a single decision on behalf of the entire Court. Thus, during his thirty-four years as chief justice, Marshall personally wrote 547 opinions. Of these, 511 were unanimous.

It is important to note the irony that Marshall, a “founding father,” rejected a strict construction of the Constitution and insisted on interpreting it as a living document that responded to the needs and demands of a growing nation.

Marshall made a number of courageous decisions that inspired a great deal of enmity in his detractors, such as clearing Aaron Burr of treason charges in 1807. This charges were pushed forward by President Jefferson for the principal reason that Burr was a powerful political enemy. But the penalty for treason was death, and there was a total lack of evidence against Burr.

While Paul is generally willing to expose Marshall’s warts, he gives him a pass when it comes to slavery. Paul writes:

"Marshall was not free of racial prejudice, and he did enjoy the comforts that his household slaves provided to him. Marshall’s attitude toward African Americans was paternalistic. He viewed his slaves as family members who needed his guidance and support. . . . It appears that Marshall treated his slaves humanely, and on at least one occasion, he paid for a doctor to care for a slave woman who was ill.”

In his conclusion he repeats the assertion that Marshall had a “generous and humane relationship with his slaves" (p. 437).

[This seems to me to be a quite specious argument. Can you be “humane” toward someone you hold in ownership, house in your basement, trade like baseball cards at a cattle market, and buy and sell at your whim? Okay so maybe you don't use a whip and don't use rape - should that be touted as laudatory? I would accept "less horrible" perhaps, but not "humane."]

Paul Finkelman, writing in Supreme Injustice: Slavery in the Nation’s Highest Court (Harvard, 2018) contends that biographers are reluctant to tarnish the picture of “our greatest chief justice.” But Marshall’s relationship with slavery was an important influence on his jurisprudence and therefore deserves closer scrutiny.

Marshall accumulated more than 150 slaves in his lifetime, while also giving around seventy slaves to two of his sons. When he died, Marshall did not arrange to free any of his slaves, unlike some other prominent Virginians in his time, including George Washington. No evidence remains as to how he actually treated his slaves.

But we can learn something from his jurisprudence, Finkelman argues. It was "hostile to free blacks and surprisingly lenient to people who violated the federal laws banning the African slave trade.” (Finkelman at 34) For Marshall serving on the court, Finkelman argues, “slaves were another form of property subject to litigation….”

Finkelman cites John Marshall in his “Memorial: To the General Assembly of Virginia,” December 13, 1831, available in Papers of Marshall, 12:127 contending that free blacks in Virginia were worthless, ignorant, and lazy, and that they were “pests” that should be removed from the state.” (Finkelman at 51)

It is truly tragic that Marshall felt this way, for he might have made a difference. As Marshall said in his opinion exonerating Burr, and acknowledging the unpopularity of the ruling:

"That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. . . . But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace. That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should, on each side, press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is, perhaps, a frailty incident to human nature; but if any conduct on the part of the court could warrant a sentiment that it would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret.”

Evaluation: I love reading histories of John Marshall - how can anyone with an interest in the law and in this country not find fascinating the court cases that shaped all subsequent jurisprudence as well as the relationship among the three branches of government? The fact that relationship is now imperiled is all the more reason to study how and why these struggles were worked out in the past, and to what effect. show less

Known to be the greatest orator of his time, Daniel Webster's legacy demands that any author telling his story must possess their own extraordinary talent with words. Joel Richard Paul is a worthy writer, setting out the history of the “Godlike” Daniel with clear, concise writing. Weaving the history of the United States with the personal story of the most influential speaker of the mid-1800s, Paul presents how American Nationalism came to be, and what it has meant to the country’s show more citizens throughout the years. He analyzes the ascent of a man who spent his childhood working on his family’s farm, only to become an integral part of America’s political beginning, from his impassioned speeches to his long career in various parts of the US government. Webster truly comes alive in these pages, and Paul’s description of the racial and political divide of early America feels eerily reflective of current conflicts. This book is an eloquent statement on the power of words, and a must-read for any lover of American history. show less

Well-done portrait of the life and work of the 4th Chief Justice of the United States, the longest-serving (to date) and arguably the most influential. Paul is especially helpful in explaining the reasons for the friction between Marshall and his cousin Thomas Jefferson. He also brings out the crucial role Marshall played in the development of the Bill of Rights, suggesting that he, no less than James Madison, deserves to be thought of as their 'Father.' Marshall is shown a devoted husband show more (although Paul suggests he may not have been entirely faithful to his sickly wife Polly, he does not draw any conclusions on the matter), an unassuming man (sometimes greeting visitors at his front door with broom and dustpan) with a fine sense of humor and a love for children and games, and, perhaps most importantly, sufficiently charismatic and so dedicated to consensus that a surprising number of decisions from the Marshall Court were unanimous (as well as written by the CJ himself). (Given the contentious political atmosphere at the time, this is a remarkable achievement!) As a professor of constitutional and international law, the author is perfectly qualified to demonstrate the importance of many of Marshall's decisions -- and is not averse to pointing out places in which he was inconsistent, manufacturing principles out of whole cloth, even (in one instance) perhaps to the point of suborning perjury to obtain his desired result. (In fact, Paul is perhaps too good, too thorough, in his legal analysis: I sometimes found myself bogged down in the latter half of the book. Hence my 'deduction' of one, perhaps even two stars in my rating.) Marshall's practicality is constantly contrasted with Jefferson's more idealistic point of view (as Paul points out, "No Marshall biography can avoid taking sides in their conflicted relationship."). It is a measure of Paul's success that he makes a strong case, clearly coming down on the side of Marshall...and manages to persuade his readers (at least *this* one!) to do so as well. show less