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your primary source for campaign 2018. ♪ >> this week, joe richard paul, professor at law in san francisco discusses his book "without precedent: chief justice john marshall and his times." brian: joel richard paul, author of "without precedent." chief justice john marshall and his times, what do you like about john marshall the most? l: john marshall was probably the most important of the founding fathers. he had the most enduring impact on what our nation has become.

he probably did more than anyone else to preserve the unity of the republic at a time when things were very rocky for the country. brian: give us one example of something still here today because of him. joel: the most obvious example is the notion that the supreme court of the united states is a coequal branch of the government. before john marshall, it was a -- the supreme court was a constitutional afterthought. it did not have the same degree of prestige as it has today. john marshall really changed that. brian: what did the founders want the court to be before he got to be chief justice? joel: the founders imagined the court that would be limited in scope. the first congress established the jurisdiction of the court system. basically, the court heard primarily admiralty law cases in the district courts.

there was not that much federal legislation that would come before the supreme court. the justices of the supreme court were required to ride circuit, which meant getting on a horse and writing around the country and hearing cases, sleeping in taverns and sharing beds with strangers. marshall came into the court at a time when no one really wanted this job. it was a lousy job. the people who had preceded him -- marshall to the court did not stay long. the justices were not paid very well. the cases had very little prestige. they only had about six cases a year that they heard. it was no great shakes being a supreme court justice before john marshall. brian: if you ask in a survey of the american people about the founders, how many do you think would say john marshall was one of the most important? joel: probably just me. [laughter]

joel: very few people. part of the reason for that i think is that john marshall's legacy was really obscured by a single opinion, marbury versus madison, that establishes the principle of judicial review. that is what he is known for. but the fact is, john marshall was a soldier in the revolutionary army and very important. a judge advocate general of the army, he served at valley forge. he was a leading figure in the virginia house of delegates. probably the indispensable man in the ratification debates, because he was the guy who persuaded the majority of virginian delegates to go along with ratifying the constitution and without virginia, there would not be a constitution. he was an important diplomat in negotiations with france, and he was secretary of state. all of those other contributions he made as a founding father

kind of get forgotten because of the significance of his one decision in marbury versus madison. brian: you said in your book it took seven years to do the book. joel: yes. brian when did you first get : introduced to john marshall in your life? joel: i am a professor of law. i teach at the california hastings law school in san francisco. before that, i have been at five other law schools. throughout my 32 years teaching, i have encountered john marshall in so many cases. you cannot help but be curious about this guy. here is a man who has an enormous imprint on the way we think today about the constitution and international law, and yet he had no education. he came from a very poor family in the backwoods of virginia and somehow rose to this enormous height and had such an impact on

the country. it was natural that i was curious to find out where he came from and how he did what he did. brian: talk about his parents and the exact location he was born and under the circumstances , what was their living like? joel: john marshall was born in culpepper county in what is today germantown, virginia. he grew up in a two room log cabin, 400 square feet, with his 14 brothers and sisters. how is that for a close family? brian: they all stayed in that log cabin? joel: they all stayed in the log cabin and he shared a room with his brothers and sisters. they eked out a living, it was a hardscrabble life. his dad was a farmer and also a surveyor with george washington. he was one of the surveyors for lord fairfax in virginia.

marshal had no formal education apart from a single year of grammar school. but his mother, interestingly, was a descendent of the randolphs, the first family of virginia, high society of virginia. john marshall's grandmother, her mother, was born and raised in a grand plantation in virginia. his grandmother was a bit of a wild woman. she was rejected by the rest of the family when she ran off with a slave overseer. she was disinherited. when her brother was dying, she would have inherited presumably the estate, but her brother decided instead to ask his friend, peter jefferson, to be the executor of the estate. and peter jefferson was thomas

jefferson's father. so thomas jefferson, john marshall's cousin on his mother's side, second cousin, moved into and was raised in the estate that had belonged to john marshall's grandmother. and while john marshall grew up in poverty in a log cabin, thomas jefferson grew up with enormous wealth and privilege, surrounded by 500 slaves. very different beginnings of their lives, and of their lives would intersect many times after that. brian: when did he meet his wife polly, and what impact did that have on his life and see grew -- as he grew into being the longest serving chief justice? joel: when john marshall was a soldier during the revolutionary war, he was a young man, 19 when he joined the continental army. he went home to visit his family. his father at that point was temporarily living in williamsburg.

one of the neighbors were polly's parents. her father was the treasurer of virginia at the time. they were a socially prominent family at the time it had lost much of their money. john marshall met the girls and fell in love with polly. i don't want to shock your listeners too much, but at the time, she was 13. john marshall was seven years older than she was at the time. he falls in love with a 13-year-old girl, and of course he can't do anything about that until she comes of age. but he is obsessed with her. polly plays an important role in his decision to become an attorney, because when he eventually retires from the military, polly is still in williamsburg. he needs an excuse to live in

williamsburg. he decides to enroll in a course at the college of william and mary, and decides to enroll in a class about law. he takes a series of law lectures taught by george with, a great figure in virginia law. he is only in law school six weeks. something which most of my law students would envy. he gets to see polly on a regular basis, and if you look at his notebooks, he keeps writing her name in the margins. clearly that is on his mind. and then polly's family decides to move to richmond. he quits law school, moves to richmond, reads for the bar, gets admitted for the bar, but during the revolution there is no work for lawyers. he decides he needs an excuse to stay in richmond and he runs for the house of delegates and gets elected. brian: at what age?

joel: he would have been in his late 20's at that point. brian: how old was polly when they married? was in his mid-20's when he was elected and i think she was 16 or 17 when they finally married. brian: they had 10 children. how many lived? joel: of the 10 children, only three survived john marshall. they had a very tragic experience with their children. polly lost four children as infants. the stress of that caused her to really have a mental collapse and she never really recovered from it. through most of their married life, she was confined to an upstairs bedroom. here is john marshall, this very outgoing, gregarious guy, a natural politician, always wants to have friends over, but they

have to keep the house very quiet because polly is disturbed by any noise, and everyone has to walk around in their stocking feet. they have all of these children that they can't play indoors or make noise because it disturbs their mother. so marshall effectively raised the entire family and took care of his wife. brian: from your research, how did he become the chief justice of the united states? joel: well, he becomes chief justice in a kind of accidental way. as i said earlier, no one really wanted the job of being on the court. john marshall -- if i can go back and explain how he is up to where he gets too. you where he gets too. he is in the house of delegates, the ratification of the constitution comes up. on he goes to the ratification

debates in virginia as one of the delegates, and he and james madison are really the two principal proponents. on the opposite side, you have patrick henry, enormously respected and a hero of the revolution. patrick henry is arguing that this is the end of the republic, and it will finish off all of our liberties. and marshall and madison are , and madison is a brilliant theoretician but doesn't really have the personality of a politician. he has a kind of a squeaky voice and a large head. he is kind of nerdy. james madison cannot really persuade people. so it is marshall who takes folks out for drinks to his favorite tavern, and over a glass of madeira convinces them

to vote for the constitution, and delegate by delegate, he win votes. when the constitution is approved in virginia, it is approved by 10 votes. without john marshall, there is very little doubt the constitution would not have been adopted. marshall does that and becomes a federalist hero for having gotten the constitution through virginia. brian: what does it mean to be a federalist at that point? joel: at that point, there isn't a federalist party, that was someone who favored the constitution. the parties don't really emerge until the election of 1800. what happens is you have this bitter debate over the relations between united states and france during the period when the french and english are fighting.

the french are expecting, maybe reasonably so, that we will be their allies against the british, because after all, they had been our allies and the american revolution against the british and we had signed a treaty of alliance. but washington, wisely realized that we were in no position to take on another war against the british so he maintained a position of neutrality. but his secretary of state, thomas jefferson, did not agree. jefferson favored the french, and the republicans who were like-minded with republicans, people have been anti-federalist, who favored states rights and wanted to preserve more of an agrarian society based on slave labor, those people joined together to support the french. when the french ambassador to the united states arrives, he

literally starts republican clubs around the country. they are republicans in the sense of french republicans. but that name republican becomes the name of the political movement that jefferson would ultimately lead. brian: if you were a federalist, what do you believe in the strongest? joel: in a strong national government. a federalist believes in commerce, trade, and trying to develop infrastructure to net the country more closely together. that was the essence of what john marshall believed. brian: if you were a jefferson republican, what did you believe? joel: pretty much keeping things as they are, maintaining an agrarian society focusing on states rights, on individual liberty, a weak national government. you don't want it to be involved

in foreign affairs, you are generally suspicious of cities and commerce and finance. you believe an agrarian lifestyle is a healthier lifestyle for the republic. brian: i want to put on the screen population figures for back in those days. you have set it up, we have britain and france, and then there is the united states, and the numbers you can see our 5 are 5 million in 1800, and it jumps a couple million each year 7 million in 1810. 1835, 14.5. the reason we put all those numbers up there is because those are the years john marshall was on the bench. again, going back to how john

marshall got there, you point out about him being a delegate, but when was his first government job? joel: his first government job was he was sent by john adams to address the french, when the french were interfering in american shipping. the french to not like john adams because they were suspicious of federalists. they began seizing u.s. ships on the high seas. they seized 400 u.s. ships. brian: what would they do with them once they had seized them? joel: they would basically attach them as prizes, which meant they would sell the ships off, they would convert them into naval vessels, they would take the goods off of the ship. brian: why did that not create an immediate war? joel: that is the point. the french by seizing these

ships created a lot of friction, but the u.s. was not in a position to fight the french at that point, we did not have a navy. so marshall and pinckney and aldrich gary are sent to negotiate with the french foreign minister, and this is during the french revolution when everything is chaotic in france and nobody knows who is in charge. so they sit down and he says, before i negotiate with you, i want you to give me a bribe of $4 million. a personal bribe. and pinckney is equivocal, and gary thinks maybe we should, and marshall says absolutely not. the foreign minister seizes their passports and does not let them leave the country.

basically, they are stuck in france for nine months, during which he will not negotiate with them, and since spies, and tries to blackmail and pressure them into making concessions some of which marshall refuses today. -- refuses to do. so he returns from that a national hero for having stood up to the french. he is swept into congress. he effectively becomes the leader of the federalist party in congress. he gave the eulogy for george washington in the house of representatives when washington died. but marshall does not want to stay in washington, he would rather go back to his wife and kids. but he is afraid if he leaves office, it will look like he is giving up. brian: how old is he at this point? joel: he would have been in his

40's, i think, his early 40's. basically, he decides -- at this point, adams has offered him a number of jobs in the cabinet and he keeps turning them down. he offers him secretary of war, he offers an attorney general, he does not want those jobs. then he offers him the position of secretary of state. marshall thinks, this is a good way to get out of congress. i can be secretary of state for the last nine months of adams's term and then i can go back to virginia. so that's what he does, he takes a job as secretary of state. he and adams barely know each other at this point. the city is still under construction, around 1799. marshall would have been 44.

adams says to him, my wife i abigail cannot stand this will place, it is a swamp. i will i am going back to quincy. here are the keys, you are in charge. he leaves marshall in charge of the federal government, and marshall runs every office of is the federal government except the war department, for nine months. brian: while adams is president? joel: adams is president, but he is in quincy. marshall writes to adamson says it is ok,, but he pretty much goes along with whatever marshall wants to do. marshall is overseeing the construction of washington, d.c. and he is literally deciding where the streets go and watching the construction of the capital and white house. on top of that, you have the threat of war from britain, france, spain, and barbary pirates.

marshall is navigating these crises while running the city and government. he has a staff of nine people in a budget of $15,000, which is enough for stationery and firewood. that is how he does it. brian: on a personal basis, because you give us this flavor in your book, who hated who? joel: [laughter] brian: you had thomas jefferson and john adams and hamilton and george washington, and all of these people in a room, who sat there looking at each other thinking, i really don't like you? or i like you. joel: i say in the book, thomas jefferson was a guy who may have loved humankind, but he did not particularly like people. he was very suspicious of the much everybody around him, but his one aide de camp was

james madison. and to a lesser extent, james monroe. but he was very hostile and suspicious to everyone else. he did not much like george washington and there was a great deal of friction between the two men. he and adams had been friends with a were co-commissioners in france. while the american revolution was raging. afterward, when he became vice president, he did everything in his power to undermine john adams, including paying people to write scurrilous things about him. but the most intense hatred i think was between jefferson and marshall. it wasn't so much that marshall hated jefferson, although i think he did hate jefferson. marshall was a guy who liked people a lot. but jefferson and marshall, they just did not mix. jefferson spoke the language of republicanism, which meant a

belief in the common man, a kind of -- a classical simplicity in his lifestyle, but he did not live like that. he lived extravagantly and he himself was not a common man. marshall, on the other hand, really had pulled himself up by his bootstraps, and was very much a guy who never forgot who he was, who loved people, was friendly with his slaves, with folks on the street. he would go shopping for himself rather than sending his slaves to do shopping. he would clean the house. he was not a guy who had any affectations at all. much more republican in his

lifestyle, while at the same time he as a federalist was really aligned with the power elite, the people who were the financiers, the cosmopolitans, the folks who were more urbane and urban. there was this ironic tension between the two men. brian: what was your best source of information to get a feel for him? joel: i was fortunate, charles hobson is the editor of a series of marshall papers, about 13 volumes i think. brian: based where? joel: university of virginia. he and other editors, more numerous than i could name, did a phenomenal job of annotating the papers. it really was a great research tool for me. brian: how much time did you spend with them? joel: the papers? seven years. brian: did you have a pattern where you would read, read? how did you absorb it all?

joel: it is the kind of thing where you read through a part of his life and you start to write about it, and you go back and read about it some more, and you say, that reminds me of something in the past, so you go back to the past. it is a back-and-forth process. it's hard to say how much time i spent with any part of it. brian: is it online? joel: i think it is behind a pay wall. but it is available in libraries. i have my own copy. brian: did you go to the places where he lived? joel: i went to his home in richmond, which is beautifully restored by the virginia preservation society. it is wonderfully maintained and i had a private tour. of course, i am very familiar with washington, d.c. and paris, where he spent a good deal of

time. and i spent some time in richmond, as well. i am familiar with the areas. brian: there is so much i want to cover and we don't have enough time. i am going to jump into the middle of what you mentioned earlier, marbury versus madison. did i read correctly that before marbury versus madison, that he did not tell the truth? joel: well, yes. in this respect, i thinking it's an explanation. at the time of marbury versus madison, jefferson was out to destroy the courts. jefferson was a threat to the independence of the judiciary. he felt that the federalists had taken advantage of the position my stuffing the courts with federalists and he wanted to get rid of them.

they had set out to impeach federalist justices across the country, he wanted to impeach a federal justice, and everybody knew that marshall was next to go. they canceled the supreme court's term in 1802, out of spite. brian: who canceled it? joel: the republican congress. they fired all of the circuit court judges appointed by federalists, which was a most certainly unconstitutional. it was a war on the judiciary. it was a threat to the independence of the judiciary and rule of law. and that environment, william marbury files petition to demand that he be given his commission as a justice of the peace. it is not that he really wants the commission. william marbury is the president of the largest bank in

washington, d.c. his home is now the ukrainian embassy in washington. it is funny that the ukrainians are always popping up in these stories. but marbury is out to embarrass jefferson. and marshall realizes, he has two problems here. they filed this writ in his court, and he knows if he issues an order to james madison to deliver this commission, madison is not going to listen to him because madison does not respect the court, either. the court is not equal to the presidency. madison doesn't even show up in court when he is sued in court. brian: isn't it equal under the constitution? joel: in the constitution, but it was not an practice. madison doesn't even think he is subject to the court's jurisdiction. secondly, the problem is that there is no proof that a commission was issued, because the commission had been signed by president adams after it had been approved by the senate, and

sent to john marshall's office, and john marshall has put the great seal of the united states on the commission as secretary of state. brian: that date is when? joel: a day before jefferson took office. marshall did not get around to delivering the commission. the problem becomes, madison refuses to turn over the commission is proof to the court. the senate, under control of the republicans, this is the jeffersonian republicans, not the current republicans. they refused to turn over the congressional records showing this commission had been approved by the senate. and so marbury has no proof. marshall's brother james is a federal judge. he is the circuit court judge for the district of columbia. he submits an affidavit that says that he is the person who was supposed to deliver the commission but he did not get around to it and he forgot, but he knows the commission was

issued. that's the only proof marbury has to base his case on. marbury writes to his brother james and says, you are not going to believe this, i made a stupid mistake, i forgot to deliver this commission. he is telling his brother a story in this letter. so his brother and himself and presumably marbury came up with this plan. john marshall cannot testify in the supreme court that he saw the commission and the commission was issued. so yes, marshall did not tell the truth. brian: is that new information in your book? joel: it is new information based on an old letter i found. brian: where did you find it? joel: in the collected letters of john marshall and i don't think people realized the significance.

the reason i let john marshall off for this is that he did it in a good cause, in the cause of defending the rule of law and the independence of the judiciary. because the decision he issued is so critical to our democracy. he says in marbury versus madison not just of the court can strike down acts of congress, but more important than that, that the president of the united states and numbers of the cabinet are subject to the court's jurisdiction and accountable to the law of the land. that is to say, everybody, even the president, is not above the law. that principle is so fundamental to the rule of law, and that was established in marbury versus madison. brian: on the screen, the numbers on the supreme court at the time that john marshall was on the court.

in 1789, there were six. he was not on the court yet. in 1837, 9. 1863, 10. 1866, 7. 1869, 9, and nine ever since. how could they jump around like this? joel: article three of the constitution says there must be a supreme court but not how many justices. it is up to congress to decide on from time to time how many justices to approve. congress can change the number of judges. brian: i think i found that john marshall served over those 34 years with 13 different men on the court, some came on and left. what were the politics of the people -- we know john marshall was a federalist, but what were the politics of the others?

joel: this is the genius of john marshall. john marshall was a federalist. he was the last federalist in this country, basically. every single judge appointed to the court after john marshall was a republican. appointed by a republican president determined to overturn the jurisprudence of john marshall. and john marshall nevertheless, he participated in more than 1100 decisions in his 34 years on the court. in that time, more than half of those opinions, john marshall wrote himself, he wrote the longhand himself, and all but 35 of his opinions are unanimous. what does that say? that is a record we cannot possibly hope to equal today. john marshall had the personality and intellect to bring people together, to find common ground, to forge some sort of compromise in situations where nobody for a compromise -- thought a compromise was

possible. he was talking to a court appointed to be his opponents. people naturally liked him, they found him credible him and he worked very hard to find a middle ground. that is what is missing in the court today and what is so important in a democracy, to preserve the independence of our courts and respect for our courts. before john marshall, we did not have a tradition in this country of issuing an opinion for the court. every judge would issue his own opinion. john marshall said, if we are going to elevate the court, make it a coequal branch of the government, we have to get together an issue one opinion and speak with one voice. that is missing on the court today, and what we need. brian: you write that samuel chase is the only justice of the supreme court to be impeached. they tried to convict him and all of that. he was on the court when john marshall was there. why was he impeached, and why wasn't he convicted?

joel: samuel chase was this sort of big, a big d.c. guy. he had a very kind of gruff manner to him. brian: you say they call him old bacon face? joel: old bacon face was his nickname. he was a guy who did not suffer fools gladly. he would express his political views somewhat like the late justice scalia, very outspoken. people did not like that much in the republican party, and so they set out to impeach him because of his politics. he was impeached by the house but not convicted by the senate. brian: why? why was he acquitted?

and what role did marshall play in the acquittal? joel: marshall played a role in the acquittal. in the trial for samuel chase, marshall was called as a witness. before marshall had been a justice, he had been an attorney in virginia who had witnessed one of the trials samuel chase had overseen as a circuit court judge in virginia. in this trial, it was alleged chase had been a little rough on the defendant's attorney. and marshall disputed that as a witness. brian: this is in the united states senate, he is a witness? joel: he is being tried in the senate as an impeachment trial. marshall basically argues it was not that way at all. the trial is overseen by the vice president, aaron burr.

he is very fair-minded in the way he directs the trial. as a result, they really don't have any clear grounds for convicting him. he is acquitted in the trial. of course, jefferson is enraged by this. this is really what turns jefferson against burr. burr had already been responsible for the murder of alexander hamilton, and yet, that did not turn jefferson against burr. - jefferson offered to help burr escape legal consequences for the murder of alexander hamilton if burr would see to it that samuel chase was convicted. and yet, burr defended the rule of law and withstood the pressure from jefferson, and samuel chase was acquitted.

brian: you tell a story about burr and marshall. what role did marshall have in his life as time went on? joel: this is really, i think, a chapter that most people have no idea about. jefferson essentially frames aaron burr for treason. brian: where is he? joel: burr is no longer vice president. after the first term, jefferson throws him off the ticket. brian: he has already killed hamilton? joel: he has already killed hamilton and acquitted chase. jefferson doesn't want him on his team and throws him off. burr tries to run for governor of new york and loses. he is basically a man lost in the wilderness. he comes up with a crazy scheme that nobody knows what he really intended, whether to start a war with mexico, to carve out his own empire, we don't know what

he was doing. but there is no hard evidence that he was actually going to commit treason against the united states. jefferson nonetheless uses what little evidence he can put together from one of burr's collaborators and manages to frame this case against him for treason. but when it is clear -- and the case goes to the circuit court in virginia, which is headed by john marshall, so john marshall is a circuit court judge. as a chief justice, he also has to run a circuit court. he is hearing the case against burr. brian: did the circuit courts at that time have juries? joel: yes. it is very complicated, but basically the circuit courts heard some jury trials and the

district court's hurt other -- heard other trials, and we will leave it at that. brian: but it is not that way today. joel: no, circuit courts are just courts of appeal. marshall is hearing the case and it is clear the jury is not going to convict because of the way marshall is directing the jury. they are not going to convict aaron burr. jefferson comes up with a new idea, let's convict him for constructive treason. this is an ancient british doctrine that the british had long since rejected in that basically the king could say anyone who insulted him or questioned his right to rule was guilty of treason and must be hung. that was the doctrine thomas jefferson put forward as a basis for trying to convict burr, and it was marshall who said no, the first amendment does not permit any sort of action for

constructive treason. the only provision in the constitution for treason is the provision in the constitution itself. so he essentially rescues thomas jefferson's reputation. because if thomas jefferson had succeeded in what he set out to do, to hang his vice president, he would be remote as a bloodthirsty tyrant. it is marshall who saves his reputation by saving burr. brian: after all of your research and teaching, what do you think of thomas jefferson? joel: [laughter] i admire his writing style. he was a great writer. will i admire him for building a great university in virginia. i think he was a mediocre president who was responsible for some very bad decisions. and i think he, as a political

figure and a statesman, i think all he was untrustworthy and oftentimes ruthless. i think he is not deserving of all of the respect he has been accorded as a statesman. as a writer and a man who founded the university of virginia, i respect him greatly. brian: i want to read a little bit of your book, page 386. it has some link i think to today. "marshall worried that andrew jackson's presidential campaign roused an insidious spirit and -- in the american people. ever since jackson lost to john in 1824, hisincom democratic supporters had engaged in a perpetual campaign of accusation against the president and his heir apparent, henry clay, the secretary of state. the masses were animated with the most hostile feelings toward each other, marshall wrote.

this new phenomenon was a permanent campaign that polarized the country by region. marshall saw that it threatens the most serious danger to public happiness. the patience of men are so inflamed and bitter against each other that i dread the consequences." joel: sounds familiar. brian: yeah. you mean this is not the most divided time in the united states right now? joel: no. i think parallels between this moment and john marshall's moment are very striking. i think both jefferson and jackson, who were elected as populist presidents, likely with the support of southern, rural voters. there were issues of race and --

there was a sense that both men were elected as disruptors. they were elected as people meant to come to washington and clear out the swamp. they came in with huge majorities in both houses of congress, and proceeded to really make their presence felt in a way -- and they were not always respectful of the court system. and i fear that is where we are today. the difference is, at that moment in time, we had john marshall leading the court. and john marshall was able to defend the rule of law. i hope we can expect the same from chief justice roberts. unfortunately, to this point, the chief justice has not been able to knit the court together and build consensus he needs to in a moment where i think the constitution is in peril. brian: there is another point of contention between you and

another historian. joel: yes. brian: from your perspective, how many slaves to john marshall have and why did he have them, in your opinion? joel: 15 or 16 slaves and his household in virginia. these were household slaves. they were not -- they did not live the kind of lives that slaves led on plantations. that is to say, in many cases, their own homes, their own families, they could move around the city and john marshall does not have clean hands, but it was not a plantation. brian: how does john marshall, who came from nothing, 14 brothers and sisters with no money, how did he get to the point where he has, in your opinion, 16 slaves? joel: he worked. he became one of the leading attorneys in virginia. he represented george

washington. he represented all of the largest states and families in virginia. one of his principal sources of income were cases brought in a defense of u.s. debtors to british creditors. he later represented british creditors in some cases. brian: here is a point of contention. author of "supreme injustice," earlier this year you were talking about some things, he talks about the number of slaves he thinks john marshall had. [video clip] >> the marshalls owned approximately 250 slaves.

it seems likely that in addition to the 150 or so in john's name, the other 100 or so were conveyed to john's sons of various times. they may have added to these slaves, but the slaves had been acquired and given to the sons. that leads to the question first, how did so many scholars miss this? how did so many scholars not notice these hundreds of slave john marshall acquired? brian: how is that possible? joel: one reason it might be possible is it is not true. i have great respect for professor finkelman as a historian of slavery, but he reaches the conclusion that there are all of these slaves based on the fact that at some point he found conveyances showing that marshall gave to his children up to, i think, 130 slaves or something like that. he projects from that that there were these other slaves, and marshall must have owned a secret plantation that no biographer of marshall has ever

heard of, there is no record of in of his writings, no evidence of income or expenses for this plantation. it is a bit of a mystery to me. i think the more substantial issue he raises in his book is that marshall decided a number of cases brought by slaves against slaveholders in favor of the slaveholders. finkelman argues, and it is inconsistent with my view and other marshall biographers that marshall was anti-slavery. the cases he was referring to were cases where, for example, a slaveholder had failed to register the names of slaves with proper authorities. the slaves argued, therefore i must not be a slave. the question was, what is the appropriate remedy under that circumstance? cases where a slave's parent was

not held as a slave, and so they could not be born into slavery. but there was not a majority on the court at the time to oppose slavery and marshall knew this. what he did was he wrote the opinions, but wrote them on the narrowest possible technical grounds in ways that would not address the issue of slavery precisely because he was avoiding creating a precedent to uphold slavery. instead, in the cases where there was a majority arguing in favor of slaves, he was in favor of the slaves and got someone else to write the opinion. he was a guy who in a series of important cases expanded the power of congress, cases that had nothing to do was slavery,

but everybody in the south understood that the intention of those cases was for marshall to establish the principle that congress had enough authority to regulate slavery out of existence. that was his really intention. brian: you say he thought that slavery was evil, but if it was that evil, why didn't he free his slaves? why do so many historians have -- you all of these founders a pass? some of them had hundreds of slaves. and they say they're going to release them when they die, but that doesn't seem very humanitarian. joel: as i said, marshall did not have clean hands. i think all of us live with a certain amount of hypocrisy in our lives. we think that the treatment of animals may be cruel but we still eat meat or buy leather shoes. i think the reality was at the

time, he had 10 children, an invalid wife. he needed the labor and he had no other way to manage his household. there wasn't a white liverpool -- white liverpool -- white labor pool in richmond, virginia. but he does not have clean hands. i want to emphasize that. on the other hand, between him and jefferson, jefferson wanted to preserve the agrarian society based on slave labor that marshall was out to destroy. brian: you say he did not vote in presidential elections. joel: yes. brian: he gave the oath to eight presidents? joel: eight times. brian: was he close to any of those people who became president? joel: he was very close to james monroe. james monroe, his single year of grammar school, he had gone with james monroe.

they had been friends despite political differences. although james monroe was closer to jefferson. brian: when did polly die? was he on the court at the time? joel: he was on the court. polly died around 1830, i could be wrong about the day. brian: i think you say he says that the single biggest mistake or failure of his life was trying to write a five volume biography of george washington. why was that such a big mistake? joel: it's a terrible biography. i'm probably the only person who has read it recently. brian: how big is it? joel: basically, what happened was, marshall and his brother james were speculating to try to

acquire land to build their wealth. they had reached an agreement with the estate of lord fairfax in virginia to acquire a large chunk of his property. they had to raise enough money for the mortgage. marshall did not earn enough money to pay for this. so george washington's nephew was on the court with marshall and was a friend of marshall's, said why don't you take george washington papers and write a biography? so marshall reluctantly agrees to do this. it is sort of a disaster. he doesn't really realize what he has got himself into. the first volume is sort of a history of the united states beginning from the time of columbus. it has nothing to do with george washington. george washington emerges at the end of it. he is so close to washington, because he worked with washington at valley forge, and

was close to washington -- washington was a father figure for marshall. marshall cannot separate himself out. he cannot criticize washington. it is very, a kind of disneyfied view of how washington lived and it is not very realistic or accurate. brian: he was away from his parents for 15 years? why? joel: for one thing, it was hard to travel in those days. people didn't travel long distances. brian: did you say they were estranged? joel: i sensed from the writing there was an estrangement. i think his father was a very cold man. i think that he did not really have a great interest in what marshall was doing. he had 14 other kids, all of

whom were very successful. brian: i want to ask you one other thing about the family. he had 10 kids but ended up with six that lived. one of them was a girl, mary . why did he send her away? joel: he felt with his boys his hands were full. his boys were troublemakers. he felt that with his wife ill, he did not have a feminine presence in the household, his daughter needed a feminine presence. so he sent her away to live with his sister. brian: what about his sons? what happened to them? joel: none of them really succeeded in life and they all dropped out of college. they became farmers. two of them died from alcoholism. they were not anywhere near as successful. it was a great tragedy. will he had to pay off the debts of one of his sons.

it was something that marshall deeply regretted. brian: did you find anybody else in your research you want to write about? joel: yes, my next book will be about daniel webster, one of the prominent attorneys who argues many of the key cases in marshall's court. brian: when do you think you will come out with it? joel: you can talk to my editors about that, but i am hoping in about four or five years. brian: the name of the book is "without precedent." our guest has been joel richard paul. thank you for being here. joel: thank you for having me. ♪

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