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BY OCTOBER 1789, events began to spin out of control in France. A bad drought that summer had produced a poor harvest. Bread prices soared from eight to more than fourteen sous a loaf in a few months. Bread was the main source of calories in the diet of most working families, and a typical French laborer consumed about three pounds of bread daily. A loaf of bread now cost a worker more than half the average daily wage of about twenty or thirty sous.9 As a consequence, families starved, hungry mobs rioted across France, and neither the police nor the army could keep order. Farmers and landholders suspected of hoarding food were attacked, and homes were looted and burned. Local governments were displaced by citizen councils. People in authority were attacked and sometimes brutally murdered. A mob tortured and killed one of the king’s highest official agents, Joseph Foullon de Doué. They beheaded him after failing to hang him, stuck his head on a pike, and gleefully paraded their bloody trophy through Paris. When the ugly crowd surged past the home of the newly arrived U.S. minister, Gouverneur Morris, he gasped, “Gracious God, what a people!”10
In the months that followed, Louis XVI agreed to reign as a “citizen king” in a new constitutional monarchy. Over the next couple of years, an uneasy peace returned to Paris as Louis consented to a wide range of reforms.11 The royal family regained popularity, and the aristocracy was largely unaffected. When a commoner at the Comédie-Française threw an apple at Lafayette’s sister-in-law, she blithely joked that it was “the first fruit of the Revolution that has so far come into my hands.”12
There was no sense of the impending cataclysm until June 1791, when the royal family was arrested trying to escape France and was forcibly brought back to Paris on the order of General Lafayette. A new assembly convened that was dominated by a faction known as the Girondists, which wanted to liberate all of Europe from monarchy. The previous summer, the Holy Roman emperor and the Prussian king had issued a joint declaration at Pillnitz calling on France to restore the freedom of the French royal family and warning that their fate was a “common concern” to Austria and Prussia. Even though the Girondists supported the monarchy, they saw the Declaration of Pillnitz as a military threat, and in April the National Assembly, in a spasm of bravado, declared war on Austria and Prussia.
Preoccupied as it was with internal strife, France was unprepared for war. The army lacked arms and uniforms. Officers deserted rather than swear an oath that omitted any mention of the king. Soldiers mutinied. French defenses disintegrated as Austrian and Prussian forces easily pushed across the border and marched toward Paris. The capital panicked. Austria and Prussia threatened to destroy Paris if it resisted invasion or if members of the royal family were harmed. Violent demonstrations erupted, and a more radical faction known as the Commune seized power. The National Assembly voted to imprison the king and remove him from power. He was stripped of his title and would be known only as Louis Capet. In response, other European powers withdrew their diplomats from France and shuttered their embassies. Aristocrats, already stripped of their titles and lands, now fled, but many were captured and arrested along with members of the clergy who refused to swear allegiance to the new regime. Persistent rumors of royalist plots stoked the public’s fear and anger. On September 2, a mob broke into the Prison de l’Abbaye and brutally massacred twelve hundred aristocrats and priests whose crimes were either their titles or their clerical robes.13 Despite all this bloodshed, Jefferson continued to defend the revolutionaries and minimize the loss of human life in his dispatches to Washington.
On January 21, 1793, at the Place de la Révolution, the king was guillotined before tens of thousands of his former subjects. This began a reign of repression and terror unlike anything Europe had seen before. Tens of thousands of people, mostly without privilege, title, or priestly collars, were drowned, shot, or guillotined on unsubstantiated charges of betraying the nation.
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NEWS THAT THE KING of France had been executed reached Philadelphia just as President Washington was preparing for his second inaugural in March 1793. Most Americans were shocked by the execution. Unlike George III, who was despised as a corrupt tyrant, Louis XVI was beloved in the United States as an indispensable ally of the American Revolution. Louis’ birthday was even celebrated as a national holiday.14
As Washington had predicted, Louis’s decision to aid the American Revolution had contributed to France’s insolvency, and the consequent tax increases helped fuel the French Revolution. Washington, unlike Jefferson, recognized that the French Revolution had unleashed terrible and uncontrollable forces.15 On the day of his second inauguration, these events were not far from his mind. The president, dressed in a new black velvet suit, silk stockings, and diamond knee buckles, took his seat at the front of the Senate chamber in Philadelphia. Behind him hung twin portraits of Louis XVI and Marie Antoinette, which someone had discreetly covered with a cloth.16
After a short ceremony and an inaugural address consisting of four sentences, President Washington returned to his home in Mount Vernon for a much-needed break. He was exhausted from four frustrating years in office. At sixty-one, he was in continual pain from bone loss in his jaw and rheumatism. He had grown fat and old in office and suffered from poor hearing and a failing memory. He doubted the wisdom of seeking a second term, but the leaders of both parties begged him to stay on to consolidate the new government.17 Soon after arriving at Mount Vernon in 1793, he received word from Secretary of State Jefferson that following Louis’ execution, Britain had expelled the French ambassador, and France had responded by declaring war against England and the Netherlands.
Washington was stunned. France, England, and the Netherlands were all important trading partners for the United States. But the United States owed a moral and financial debt to France. Washington knew that without the arms, talent, and fleet that France had provided, his army would have been crushed. France expected to be paid for the ammunition, guns, uniforms, and cannons they had provided, but Congress did not have sufficient funds to discharge the debt of $5.6 million (more than $130 million today).18 Legally, the United States had bound itself by the Treaty of Alliance to defend France. It would be a matter of principle to a man like Washington to honor his debts.
But the United States had signed a peace treaty with Britain and now depended on Britain for three-quarters of its total world trade. It had no cause to go to war against its largest trading partner.19 Moreover, the United States could not possibly defend itself against Britain. The United States might be bound to defend France from an armed attack, but in this instance, France had declared war first. And there was also the question of whether the United States was bound by the Treaty of Alliance to defend the present government of France or the ancien régime of Louis XVI, whose head his former subjects had severed.
Washington concluded that the United States must remain neutral.20 Contemporary international law gave neutral states the right to trade with belligerent states so long as they did not ship contraband goods such as arms and munitions.21 Washington wrote to Secretary of State Jefferson that the United States must “use every means in its power” to prevent its citizens from “embroiling us with either of those powers by endeavoring to maintain a strict neutrality.”22 But the question remained what “strict neutrality” would look like. Washington rushed back to Philadelphia to meet with his cabinet.
The cabinet was divided between Jefferson, the leading republican, and Treasury Secretary Alexander Hamilton, the leading federalist. In the absence of any formal political parties, these terms referred to loosely defined networks of like-minded people. Jefferson and Madison, for example, shared many republican principles, just as Hamilton and Marshall agreed on most federalist principles. Rather than speak of a “Republican Party,” Jefferson might refer to “republican interests” as being distinct from those of the federalists, whom he excoriated as either “Tories,” “monocrats,”
or even “monarchists.”23
After the execution of Louis XVI and the bloody events that followed, most federalists were shocked. Hamilton doubted the French had anything in common with the American Revolution. In his view, liberty had given way to “licentiousness.”24 Other federalist leaders, such as John Adams, expressed the fear that the violence of the mob could set an example that would endanger the fledgling American Republic.25
By contrast, most republicans leaned toward the revolutionaries as champions of liberty. Jefferson, for instance, shrugged off the arrest and execution of the king, whom he thought should be treated “like other criminals.”26 He hoped that the revolution would “bring at length kings, nobles, and priests to the scaffolds which they have been so long deluging with human blood.” Even when the Reign of Terror turned on his friend Lafayette, Jefferson was unmoved.27 Rather than see the revolution fail, he would prefer to “have seen half the earth desolated. Were there but an Adam and an Eve left in every country, and left free, it would be better than as it is now.”28 Jefferson thought the revolution was progressing “at a steady pace.” He dismissed the bloodshed as a minor detail. France could not expect “to be translated from despotism to liberty in a feather-bed.”29 Even three decades later, Jefferson would persist in arguing to John Adams that the French Revolution was “worth rivers of blood, and years of desolation.”30 Ignoring all evidence to the contrary, Jefferson held to the naïve belief that the revolution would lead to a democratic republic on the American model—even after Napoleon Bonaparte established a ruthless dictatorship and declared himself emperor.31
Other republicans shared Jefferson’s enthusiasm for the bloodletting in France. Madison thought that the revolution was “wonderful in its progress and . . . stupendous in its consequences.”32 And Monroe thought that the French king’s execution, though regrettable, was justifiable for the greater end of the revolution.33
The republican romance for the French Revolution was partly rooted in their loathing of Britain. Jefferson viewed the British as “our natural enemies . . . who wished us ill from the bottom of their souls.”34 England, he charged, tried to “exterminate us in war, insulted us in all her councils in peace, shut her doors to us in every port where her interests would admit it, libeled us in foreign nations, endeavored to poison them against the reception of our most precious commodities.”35 Jefferson believed that the United States should allow French military ships and privateers to operate out of U.S. ports. He looked forward to celebrating France’s conquest with the victorious French generals in London.36
Republicans displayed their affinity for the French in their taste for French furnishings, wine, and even fashion. They avoided any ostentation in their dress and their homes. They went wigless with short-cropped hair in the manner of the French revolutionaries. Silver-buckled shoes and knee britches disappeared into republican closets. Republicans toasted the success of the revolution, and they amused guests by setting their tables with toy guillotines as centerpieces.37 In all their giddy excitement, the republicans had no sense of the suffering inflicted by the revolution not just on the aristocracy but on the poor and the bourgeois as well. When news of the king’s execution reached Philadelphia, a leading republican journal, the National Gazette, sneered, “Louis Capet has lost his caput.”38
The French Revolution became the serpent in the garden tempting Americans like Jefferson on the one hand and Hamilton and Marshall on the other to taste the bitter fruit of partisanship. American democracy had lost its innocence.
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BACK IN RICHMOND, Marshall had little time to speculate about American debt to France. He was preoccupied with a different debt. By the 1790s, Americans owed British and Scottish creditors as much as five million pounds sterling (around seven hundred million dollars today) for imports delivered before the American Revolution, and half of that was owed by Virginians.39 Despite Marshall’s personal interest in vindicating Lord Fairfax’s title to his Virginia property, Marshall had earned a reputation as a champion of Virginia debtors against claims brought by British and Scottish creditors on pre–Revolutionary War debts. Prior to the Constitution’s adoption, these cases were generally dismissed by Virginia courts. But after the Constitution was ratified in 1787, the federal courts were open to British and Scottish creditors, who expected that federal judges would enforce the provisions of the Treaty of Paris that promised to honor their debts. Marshall defended as many as one hundred Virginia debtors, including men as prominent as Edmund Randolph and Thomas Jefferson, from claims worth about fifteen million dollars (around three hundred million dollars today).40
One such case was filed in federal court against Daniel L. Hylton and Co., a successful merchant in Richmond. In 1774, Hylton owed fifteen hundred pounds sterling to the British mercantile house of Farell & Jones, the same company that had sued Randolph’s estate for the consignment of 280 slaves. In 1777, Virginia passed the Sequestration Act, which appropriated all the debts owed to British creditors and required debtors to pay the state rather than the original creditors. Debtors could now discharge their debts in Virginia currency, which was worth appreciably less than the original debt in British pounds sterling. Hylton, for example, paid the Commonwealth of Virginia a stack of Virginia bills with a face value of fifteen hundred pounds, but which were actually worth a mere fifteen pounds. William Jones sued Hylton, and in 1791, Marshall defended Hylton before the federal circuit court.41
As it evolved, the case assumed national importance. The question of whether British debts could be discharged by state law had enormous economic significance. Marshall was joined by three of the most prominent lawyers of the day—Patrick Henry, Alexander Campbell, and James Innes. Marshall argued that after independence Virginians were no longer answerable for their obligations owed to British creditors under the old regime. Virginia had barred British creditors from recovering on these debts, and Hylton’s debt had been properly paid to the commonwealth in compliance with the Sequestration Act.42
Jones’s lawyers argued that the United States had promised to enforce these debts in accordance with Article Four of the 1783 Treaty of Paris. They insisted that the Treaty of Paris trumped state law and bound Virginia. If there was any doubt about that, they pointed out that under Article VI of the Constitution, known as “the supremacy clause,” treaties were the “supreme law of the land,” superseding state law.43
Marshall responded that the treaty did not retroactively preserve rights that were previously taken by the state. Even if the court found that the treaty had been intended to restore the rights of British creditors, Marshall argued that since Britain had violated the treaty—by maintaining a military presence south of the Canadian border and by refusing to pay slaveholders for the slaves freed by British forces during the Revolution—the peace treaty was void.44
Claiming that the treaty was void went too far. It raised troubling questions about the appropriate role of federal courts. Did a federal court have the power to void a treaty? Should a federal court interfere in the conduct of foreign affairs by risking war with Britain? Marshall buttressed his position with scholarly citations to international authorities such as Hugo Grotius, Emer de Vattel, and Samuel von Pufendorf, but his client was in an unenviable position. The equities of the situation, as well as the treaty, were against Hylton. After all, he had paid fifteen pounds to Virginia in order to erase a debt of fifteen hundred pounds to his British creditors, and he was now claiming that state law could override a federal treaty and that a federal court could void a peace treaty.
At this point, Marshall shifted his argument to reframe the question in terms of the federal Constitution. He knew it was unlikely that the circuit court would risk plunging the nation into war by voiding the peace treaty, and so he changed tactics. He argued that the president had no authority to make a treaty that superseded the legal rights of a private citizen under state law. In effect, Marshall was asking the ci
rcuit court to strike down a federal treaty as a violation of state rights under the Constitution. No court had ever before struck down federal or state law in conflict with the federal Constitution. It was not until Marshall’s most famous Supreme Court decision, Marbury v. Madison, that the Supreme Court first asserted the power to void federal law.
Marshall had one more arrow in his quiver. He argued that the treaty imposed only a moral obligation on states to adopt legislation that would restore debts owed to British creditors. States were not legally bound, and the treaty had no force of its own. In other words, Marshall contended that the treaty’s provision to provide creditors with a remedy in state courts was not intended to be directly enforceable in state courts unless the state legislators agreed to make it enforceable. Since Virginia had never enacted such a law, Hylton was not bound to pay his creditors. The significance of this point is that Marshall was proposing that at least some treaties might be nothing more than a promise to enact legislation in the future. There was nothing in the law of nations suggesting a distinction like this among treaties. It was a completely novel idea—one that Marshall found convenient to introduce into U.S. law later on the Supreme Court.45
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