Without Precedent

by Joel Richard Paul

  What makes this all more confusing is that Jefferson’s Republicans (also known as Democratic-Republicans) eventually morphed from the Jacksonian Democratic Party into the contemporary Democratic Party with its support for a strong national government and the rights of minorities. By contrast, Hamilton’s Federalists, after a long period wandering in the wilderness as Whigs, eventually formed the core of the contemporary Republican Party, representing what Madison denounced as the “monied interests.” For these reasons, it would be a mistake to tag eighteenth-century Federalists and Republicans with contemporary labels.

  What eighteenth-century Republicans and Federalists shared was a sense of American exceptionalism: For Republicans that meant remaking the world in the United States’ image. Federalists had a more modest and perhaps realistic goal: to preserve the Republic from the corrupting influences of European power politics. These two faces of American exceptionalism—one universalist and moralist, and the other isolationist and pragmatic—endure to the present.

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  OCTOBER 1793 BROUGHT relief from the saga of Citizen Genet when the Committee of Public Safety recalled him to France. The Jacobins intended to arrest him the moment he set foot in Paris, so Genet preferred to remain in America rather than face the real possibility of being guillotined. But by now he had burned his bridges among Republicans. Jefferson, who might have offered him sanctuary, showed no compassion for the man he had embraced so warmly only months earlier. Ironically, it was Hamilton who intervened on Genet’s behalf. Hamilton persuaded Washington to allow Genet to stay in the United States as a private citizen. Genet, the young upstart who a year earlier had joked that he would bring Louis XVI to America to teach him to be a good American farmer, now retired from public life and lived out the remainder of his days on a farm in upstate New York. He eventually married the daughter of New York Governor George Clinton, the leader of the Republican Party and Hamilton’s sworn adversary.

  Jefferson remained in Washington’s cabinet until the end of December 1793. Then he withdrew to his plantation at Monticello. After twenty-four years of public service, he was exhausted.

  But Jefferson sought the presidency three years later. His rivalry with John Marshall was just beginning.

  CHAPTER EIGHT

  JAY’S TREATY

  Though President Washington had hoped that neutrality would keep the country from being dragged into the European conflict, the Proclamation of Neutrality actually pushed the United States closer to conflict with both Britain and France. The British navy retaliated against the Americans for selling goods to France by seizing hundreds of U.S. commercial vessels. “We fear & not without reason a war,” Marshall advised a friend. “The man does not live who wishes for peace more than I do, but the outrages committed upon us are beyond human bearing . . . pray Heaven we may weather the storm.”1

  Marshall felt a strong sense of duty to the public and his commander in chief. He was now a brigadier general in command of Virginia’s second brigade. After Congress adopted the Neutrality Act in June 1794, Marshall was pressed into active service. He was charged with enforcing the statute by preventing Virginians from accepting commissions as French privateers. One of the most famous privateers was Captain John Sinclair, a hero of the Revolutionary War. Captain Sinclair had outfitted a vessel for privateering, and in July, General Marshall and his men were ordered to capture the vessel on the James River. Sinclair, who was heavily armed, and the local Smithfield militiamen initially resisted Marshall’s regiment, but they eventually surrendered without firing a shot.2 A few weeks later, Virginia’s Governor Henry Lee sent General Marshall’s forces into battle against the Whiskey Rebellion in Pennsylvania. Marshall had to remain behind in Richmond, however. That October, Governor Lee named Marshall acting attorney general for the commonwealth to replace James Innes.3

  Marshall juggled these public responsibilities while continuing his private law practice to support his growing family. In 1795, Polly gave birth to a daughter, Mary. This was the sixth child born in the decade in which Polly had already lost two children, and Mary was the only daughter who would survive. Plagued by nervous tension and depression, Polly confined herself to the upstairs bedroom, leaving Marshall to manage his large household alone.

  Meanwhile, Marshall felt squeezed by his financial obligations. In February 1794, Marshall had purchased from Lord Fairfax’s nephew Denny Martin all of the South Branch Manor for six thousand pounds sterling (roughly eight hundred thousand dollars today).4 The South Branch Manor was a fifty-five-thousand-acre tract in Hampshire and Hardy counties that Marshall bought jointly with his brother, his two brothers-in-law, and Virginia Governor Henry Lee.5 This was the first of his two major land purchases from the Fairfax estate, and it required a bank loan to finance the deal. Marshall sought a line of credit from the newly formed First Bank of the United States, and when that failed, he sent his brother James to the Netherlands in search of a foreign loan.6

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  ON AUGUST 31, 1795, a letter arrived from President Washington. “The Office of Attorney General of the U States has become vacant by the death of Willm. Bradford esqr.,” Washington wrote in his direct and unadorned style. “I take the earliest opportunity of asking if you will accept the appointment?” In addition to the salary, there was the added inducement of “the prospect of a lucrative practice” in Philadelphia.7 Twenty years earlier, Marshall was an obscure rifleman in Washington’s army from the backwoods of Virginia with no formal education and limited prospects. Now the president of the United States was asking him to join his cabinet as the nation’s highest-ranking legal officer. Marshall replied graciously to President Washington that his involvement in the legal wrangling over the title to the Fairfax property prevented him from accepting a cabinet appointment.8

  Marshall’s father, whom Marshall had not seen in almost fifteen years, wrote to his son in November from his home in Kentucky. He was replying to the news that Marshall’s sister Lucy, who was married to Polly’s cousin John Ambler, had died months earlier. Thomas mentioned in passing that “[w]e are informed that you are appointed Attorney General for the United States.” Thinking that Marshall had accepted, he continued matter-of-factly complaining that no U.S. attorney had yet been appointed for the new state of Kentucky.9 Thomas Marshall was not the sort of man to lavish praise—or grief—on his children. Thomas treated his son with the same detached paternal attitude that Marshall displayed toward his own sons.

  President Washington clearly thought highly of Marshall’s talents. When Marshall’s cousin Edmund Randolph resigned from his position as secretary of state in October 1795, Washington discussed with Hamilton whether to appoint Marshall in his place. Since Marshall had already refused the job of attorney general, for which he was certainly better qualified, the president thought he would not be able to persuade Marshall to take the job.10

  One of Marshall’s friends was running for the Virginia House of Delegates that spring, and on election day Marshall went to vote for him. At the polling place, another voter suggested that Marshall’s name be added to the ballot. That evening, to his surprise, Marshall learned he had been elected. “I regretted this for the sake of my friend,” Marshall later remarked, but he quickly patched up the friendship and was happy to be back among his former colleagues in the General Assembly.11

  Madison worried that Marshall’s return to the legislature would fortify the increasingly vocal Federalist minority. Both Jefferson and Madison viewed Marshall as the most dangerous man in Virginia. Jefferson thought that Marshall’s laid-back style, what Jefferson called his “lax lounging manners,” and his “pretense” of nonpartisanship had misled voters. He hoped that now that Marshall was back in the House of Delegates, they could expose Marshall as a “monocrat.”12

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  THE NEUTRALITY POLICY Marshall had campaigned for did little to assuage the
tensions between the belligerents. Both the French and the British felt that America’s neutrality policy discriminated against them. The British felt that the Americans did nothing to stop French privateers while they still refused to repay their debts to British creditors in violation of the Treaty of Paris. In the summer of 1793, the British cabinet issued a secret order to naval vessels to seize any neutral vessels bound for French territory. Any merchandise intended for France was a “lawful prize,” meaning it could be captured and sold. By the summer of 1794, more than 250 U.S. merchant vessels sailing in the West Indies had been captured, and at least 150 were condemned as lawful prizes. Hundreds of crew members were left stranded in the British West Indies with no way to return home and no means of support. Even worse, British officers forcibly conscripted, or “impressed,” hundreds of American seamen into the British navy.13 Impressment of British subjects was a long-standing prerogative of the Royal Navy whenever they needed more sailors. Given the poor wages and conditions on ships, the British navy was always short-handed. Impressment was a primitive form of the military draft, albeit an irregular and a capricious one. Squads of British seamen known as press gangs would descend on taverns or ships, seize men they presumed were British subjects, and kidnap them for His Majesty’s Navy.

  Relations with Britain were further strained in 1794 when the Canadian Governor General Lord Dorchester gave an inflammatory speech to Canadians relating to a border dispute with New York. He warned that Britain would soon be at war with the United States for its failure to honor the Treaty of Paris. Canadians were not generally known for being a belligerent people, and President Washington and Congress were alarmed by Dorchester’s unusually aggressive language.14

  In response to the growing tension with Britain, President Washington, on the advice of Treasury Secretary Hamilton, appointed Chief Justice John Jay as a special envoy to Britain in April 1794 to settle the ongoing dispute. As chief justice, Jay was thrust into an awkward position: Was it constitutional or even appropriate for a member of the Court to serve as a diplomatic representative for the president? Jay felt compelled to set these qualms aside. No American had more diplomatic experience. Jay had negotiated the Treaty of Paris, which ended the Revolutionary War, and he had served as the first secretary of foreign affairs prior to the establishment of the State Department. America could not afford another war with Britain. The country had no standing army or navy, and France, convulsed with revolution and tied up in a land war against her European neighbors, could not possibly spare support for the Americans as it had in the Revolutionary War. Besides, Jay found the job of chief justice boring. He had no wish to remain on the Court, which had little authority over few cases. Jay’s ambition was to run for governor of New York State, and he may have concluded that making peace with Britain would help to secure him the governorship.15

  Jay arrived in London in July 1794 and began several months of negotiations with the British foreign secretary, Lord William Wyndham Grenville, the son of the former prime minister. Grenville was superbly well qualified as a diplomat but notoriously prickly. His nickname was Bogy, as in the boogeyman, apparently because he terrified his colleagues. Jay sought compensation for the seizure of ships and U.S. sailors, but Grenville made it clear that this was out of the question. Negotiations stretched on through the summer and fall. Grenville was in no rush. The treaty was of marginal interest to Britain, but Grenville knew that Jay would be eager to return to New York in time for the gubernatorial election. Jay knew that without a navy, the Americans were in a weak position to bargain with the British.16

  By November the two men reached an agreement on a treaty that to many Americans looked terribly one-sided: The British denied any compensation for the ships, goods, or sailors they had seized, and they would not promise to stop impressment. Their only substantive concessions were to agree to withdraw from forts on U.S. territory by July 1796 and allow U.S. merchant vessels to trade with the British West Indies. In exchange, the United States would establish a joint commission to settle claims of British creditors that were not enforced by state courts. The United States also would compensate British subjects for any British goods or ships captured by French privateers outfitted in U.S. ports, and if British creditors were not able to collect from U.S. debtors, the U.S. government would pay them in gold or silver coins rather than paper bills, which could lose value. Most galling of all, the treaty recognized the ancient right of the British to capture ships belonging to neutral countries and seize goods destined for France. This was a repudiation of the prevailing international custom that neutrals had the right to trade with belligerent parties during wartime and that only a narrowly defined class of “contraband” goods—strictly military supplies—were subject to capture.17

  By contrast, the U.S. commercial treaty with France recognized the principle that “free ships make free goods.” In other words, Americans had consented to allow the British navy to seize goods on U.S. vessels bound for France, but France could not seize goods on U.S. vessels bound for Britain. This asymmetry would obviously not sit well with France or its Republican supporters in the United States. Jay knew the treaty would be unpopular, but in his view it was better than fighting a war the young nation could not win. Besides, he needed to get back to the United States in time for his election as New York’s governor.

  President Washington, realizing that the treaty would be controversial, asked the Senate to consent in secret. Republicans demanded that the treaty be made public, and someone leaked the document to the Republican press. Republicans immediately pounced. They found it was much easier to oppose a treaty than to negotiate one—or fight a war. They attacked the treaty as a complete surrender to British demands. Republicans disparaged the treaty as “Jay’s Treaty” as a way of placing blame on the Federalist governor. Why should Americans compensate British losses suffered at the hands of French privateers, they argued, when there was no compensation offered to Americans whose ships or goods were captured by the British navy? The treaty discriminated against goods bound for French territory. And the treaty failed to address the two most emotionally charged issues: the impressment of U.S. nationals and the “theft” of U.S. slaves by the British during the Revolutionary War. For many southerners, the loss of their slaves was reason enough to reject the treaty and go to war. There were angry public demonstrations against the treaty.18 Henry Adams, a great-grandson of President John Adams, later wrote that few would deny that Jay’s Treaty “was a bad one” and that the United States would not “have hesitated to prefer war to peace on such terms.” The historian, like many of his contemporaries, thought that the “palliative” of avoiding war was not worth the surrender of principles.19

  The public view of Jay’s Treaty was summarized in a bit of popular doggerel.

  May it please your highness, I, John Jay

  Have traveled all this mighty way,

  To inquire if you, good Lord, will please,

  To suffer me while on my knees,

  To show all others I surpass,

  In love, by kissing of your __________________

  As by my ’xtraordinary station,

  I represent a certain nation;

  I then conclude, and so may you,

  They all would wish to kiss it too.20

  Jay shrugged off the controversy with his characteristic humor. He joked that he could find his way across the entire country by following the light of his burning effigies.21 In fairness, Jay had a weak hand to play, and the Republicans’ insistence that they could negotiate a better treaty was a facile boast. The treaty had implicitly secured two important points that its critics overlooked: First, the British had acknowledged for the first time the territorial integrity of the United States as a sovereign country by committing to withdraw its forces from all U.S. territory, which went beyond the 1783 Treaty of Paris. Second, the United States avoided a war and a disruption in its trade that it might not have survived. About 7
5 percent of all U.S. imports and exports were traded with Britain. Moreover, Treasury Secretary Hamilton had created high tariffs to protect infant U.S. industries and provide a revenue stream for the federal government to fund its projects. More than 90 percent of all federal revenue came from customs duties, and around 90 percent of all goods subject to tariffs in the 1790s were British. In other words, British imports provided the vast bulk of U.S. tax revenues.22 Any disruption in trade with Britain would have had devastating and possibly ruinous consequences for the country’s finances.

  Given that France was unable to help defend the United States again, financing a war against Britain in 1794 would have been even more difficult than it had been in 1776. Jay’s Treaty failed to resolve all the underlying problems in U.S. relations with Britain, but by forestalling war until 1812, it bought the United States the time it needed to strengthen its fledgling economy and military. Procrastination is a failing in a tradesman, but it is often a virtue in a statesman.

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  THE DEBATE over Jay’s Treaty engaged the entire nation. In Virginia, Republicans seized the opportunity to make political hay as Jefferson looked toward the presidential election the following year. Republicans in the Virginia General Assembly proposed a resolution calling on Virginia’s U.S. senators to vote against Jay’s Treaty. This was a gratuitous swipe; in fact, no such resolution was necessary, considering that both Virginia senators were solid Republicans appointed by the General Assembly. Nevertheless, the debate became a register of opposition to the treaty and an opportunity to attack the Washington administration. Marshall argued that the Virginia General Assembly had no authority to challenge a federal treaty, but the Republican representatives easily won.23