In the spring of 1796, the issue resurfaced in the Virginia General Assembly. Washington had asked Congress to appropriate funds to implement U.S. obligations under Jay’s Treaty. Virginia Republicans now argued that since Jay’s Treaty pertained to commercial relations, it should have been submitted first to the House of Representatives as legislation—rather than to the Senate as a treaty—since the power to regulate trade is shared by both houses.24 This argument negated the plain language of Article I of the Constitution, which clearly gave the Senate the power to act alone when consenting to treaties.25
Marshall was once again faced with defending the supremacy of federal power over the states. In addition, he had a financial interest in Jay’s Treaty. The treaty affirmed the pre–Revolutionary War property rights of British subjects.26 That meant that any doubt as to the title to Lord Fairfax’s land would be resolved in his favor and that Marshall could complete the acquisition of the property.27
Friends warned Marshall that if he defended the treaty it would “destroy [him] totally.” Marshall replied that “a politician even in times of violent party spirit maintains his respectability by showing his strength; and is most safe when he encounters prejudice most fearlessly.” Marshall neutralized some of the criticism by focusing on the narrow constitutional question. He quoted Jefferson and Madison, who had previously argued that the Senate alone had the power to approve a commercial treaty like this. Marshall later boasted that when he sat down “[t]here was scarcely an intelligent man in the house who did not yield on his opinion on the constitutional question.”28 But partisanship often trumps reason. Republicans in the Virginia General Assembly voted against the treaty anyway.
Marshall thought that questions of foreign policy should be left to the executive and Congress rather than popular opinion or state legislators. Nevertheless, he decided the only way to fight the Republicans’ opposition to Jay’s Treaty was to appeal directly to the people. As Marshall wrote to Hamilton, “As Man is a gregarious animal we shall certainly derive much aid from declarations in support of the constitution & of appropriations if such can be obtaind from our sister States.”29 For the second time in three years, Marshall convened a public rally to support the president’s foreign policies. More than four hundred residents participated in the largest public assembly that Richmond had ever witnessed. And “after a very ardent & zealous discussion which consumd the day,” Marshall wrote, “a decided majority declard in favor of a resolution that the welfare & honor of the nation requird us to give full effect to the treaty.”30
Once again, Marshall had made himself a target for the Republican press that violently opposed Jay’s Treaty. Marshall’s defense of an unpopular treaty may have been motivated in part by his self-interest in the Fairfax property, but he won respect from Federalists around the country for his political courage to challenge Republicans in Jefferson’s heartland. The experience also taught him a valuable lesson about how viciously national politics was played. Marshall never expected colleagues such as Madison and Monroe to manufacture false allegations against him. “Accustomed as I was to political misrepresentation,” he noted, “I could not view without some surprise the numerous gross misrepresentations which were made on this occasion; and the virulent asperity, with which the common terms of decency in which nations express their compacts with each other, was assailed.”31
Marshall’s political education was just beginning.
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IN HIS LAST full year in office, President Washington again turned to Marshall in July 1796 and asked him to serve as minister to France. Washington had decided to replace the current American envoy, James Monroe. Washington felt that Monroe’s loyalty to the Republican Party preceded his loyalty to the president. Washington decided he needed someone who was more politically reliable and astute.
This was the third major post that Washington had offered to Marshall in as many years, but Marshall again replied that it was impossible “in the present crises of my affairs to leave the United States.”32 He was still struggling at the time to make the payments on the purchase of the Fairfax estate. Though the Republicans viewed Marshall as being overly ambitious, there is little evidence that Marshall had any intention of leaving Richmond at this point.
Marshall’s political influence as the Federalist leader in Virginia and his reputation as one of the leading attorneys in Virginia were both peaking at the same moment. And Marshall had an interesting new client: Pierre-Augustin Caron de Beaumarchais, the French comic playwright who wrote The Barber of Seville and The Marriage of Figaro. During the American Revolution, Beaumarchais had formed an arms-smuggling operation with the American envoy at the time, Connecticut merchant Silas Deane. Beaumarchais sold thousands of tons of arms and supplies from France to the Americans and had expected to receive Virginia tobacco in exchange. But Congress never repaid Beaumarchais or France.33 Marshall agreed to represent Beaumarchais in a suit against Virginia demanding payment for the arms, ammunition, and supplies delivered to the Virginia militia. Even when Virginia agreed to pay a portion of what Beaumarchais was owed in Virginia currency, the currency was so depreciated that the playwright refused it.34 But the relationship between Marshall and Beaumarchais would prove fateful.
The presidential election of 1796 resulted in a divided executive branch. Vice President John Adams, a Federalist, narrowly defeated Jefferson, a Republican, in the electoral vote. Since the Framers of the Constitution had not foreseen the development of political parties, they had not provided for candidates to run on party tickets. Thus, Jefferson, having received the second largest number of electoral votes, was chosen as Adams’s vice president. Adams’s election was an especially bitter pill for France to swallow. Practically quoting the Republicans, the French government denounced Adams as an Anglophile and a monarchist. Adams’s election felt like a slap in the face to France.
Shortly after Adams’s inauguration in March 1797, France registered its disapproval by refusing to accept the credentials of the newly appointed U.S. envoy, Charles Cotesworth Pinckney. France recalled its minister to the United States, Pierre Adet, and then France began seizing U.S. vessels on the high seas for trading with Britain. Over a period of eighteen months, more than three hundred vessels were captured by French ships, millions of dollars of cargo was taken, and hundreds of American seamen and passengers were harassed, detained, jailed, and brutalized.
It was true that Adams had no love for the French Directory. As a former commissioner to Paris with Jefferson during the American Revolution, Adams thought that he understood the French. As president, Adams feared that France was veering dangerously close to anarchy. His judgment was more astute than those of Francophiles like Jefferson. Adams’s blunt conclusion was clear: “The French are no more capable of a republican government than a snowball can exist a whole week in the streets of Philadelphia under a burning sun.”35 Nevertheless, President Adams set aside his own prejudices to try to reduce tensions with France.
Just days before he was sworn into office, he met with Vice President–elect Jefferson in his room at the Francis Hotel in Philadelphia. They had not spoken in three years since Jefferson had quit the cabinet, but their meeting was cordial. In the course of their conversation, Adams informed Jefferson that he hoped to make a fresh start with France by sending a peace commission to negotiate with the Directory, and he wanted Jefferson and Madison to serve on the three-man commission. Sending two of the most prominent advocates for France would signal Adams’s good intentions. Jefferson accepted Adams’s offer graciously, but two days later he reversed himself. Both Jefferson and Madison refused to cross party lines to cooperate with the Federalist administration.36 Loyalty to their political party trumped any desire for a peaceful resolution of the crisis with France.
In the spring of 1797, as President Adams came into office, the United States was on the brink of war for the first time as an independent nation. President A
dams called a joint session of Congress and announced that he would send a peace commission to France. At the same time, he called on Congress to prepare for war. The president wanted Congress to establish an army and a navy, but Republicans resisted raising a military. They denounced Adams as a warmonger while Federalists praised his resolve. Vice President Jefferson concluded that President Adams had joined the extreme wing of the High Federalists in his hostility toward France.37
Adams nominated a Republican friend from Massachusetts, Congressman Elbridge Gerry, and Charles Cotesworth Pinckney as co-commissioners to France. Gerry was a controversial choice among Federalists. He was one of the few men at the Constitutional Convention who refused to sign the federal Constitution, and he was outspokenly pro-French. Federalists and most Republicans agreed that Pinckney was a fair choice. He was a moderate southern Federalist whom Washington had appointed ambassador to France. Since the French Directory had refused to accept his credentials as ambassador, Pinckney was already living in The Hague waiting for diplomatic instructions.
For the third man on the commission, Adams wanted another loyal Federalist from the South. Most likely it was Washington or Hamilton who suggested Marshall, whom Adams had never met. Adams nominated Marshall, and despite Republican concerns that he was hostile to France, he was swiftly confirmed by the Senate as “envoy extraordinary and minister plenipotentiary.” Marshall learned of his appointment by letter from Secretary of State Timothy Pickering only after the Senate’s vote.
When Jefferson learned that the third commissioner would be his meddlesome cousin Marshall, he surely must have grimaced. Jefferson could not have been happy that President Adams would send any staunch Federalist to France—even though Adams had first asked Jefferson and Madison to go—but Marshall was a particularly offensive choice to Jefferson. Marshall, after all, had championed Jay’s Treaty, supported Washington’s neutrality policy, and opposed Genet. And from Jefferson’s perspective, Marshall did not know his proper place in the world. He lacked formal education. He could not speak French and was unfamiliar with European customs. To Jefferson, Marshall seemed uniquely unqualified.38 Jefferson could comfort himself with the smug assurance that Marshall’s certain failure would doom both the Federalist Party and Marshall when he returned.
Why did Marshall accept this commission after refusing Washington’s prior appointments as U.S. attorney for Virginia, attorney general, and minister to France? Marshall had no experience overseas—indeed, he had never been on board a ship before and had left Virginia only the few times he had gone to Philadelphia. But he cared about the outcome of the negotiations, and he was familiar with the underlying issues. While it pained him to leave his family and his practice, Marshall assumed that the mission would be a matter of only a few months, and he assumed that he could hold on to his clients during that time.39
Marshall had other personal motives for traveling to Europe as well. His brother James had gone to Europe two years earlier to seek funding for the acquisition of Fairfax’s estate, but he could raise only about seven thousand pounds from a Dutch banker. Much more was needed to purchase the choicest portion of the Fairfax property, Leeds Manor, which was near Markham in Fauquier County. Marshall needed the financing in place by the spring of 1797, or he risked losing his option to buy Leeds Manor. Now that Jay’s Treaty had presumably cleared the title to the property, Marshall was determined to find financial backers in Europe.40
But first Marshall would have to explain his absence to Polly. At thirty-one, Polly was frail, anxious, and pregnant again. Even with a household of slaves, she was unable to take care of their three children. Polly did not respond well to Marshall’s news. She feared for her husband’s safety, as he would be traveling such a long distance between two belligerent powers that were convulsed by war and revolution and willing to seize or sink an American vessel. And she dreaded the thought that he could be gone for many months or even years. Marshall left Robin Spurlock to manage the household in his absence. There was no time for a quiet good-bye. Well-wishers crowded their house day and night as Marshall rushed to pack and hurry to Philadelphia at the earliest opportunity. He and Polly exchanged harsh words before he left. Perhaps Polly said more than she really meant. She remained bitter for some time afterward.41
On his way from Richmond to Philadelphia, Marshall stopped at Alexandria to visit Washington. He wrote to Polly that his trip by horseback was uneventful: “All your other fears will be as foundationless as this.” He asked her to write to him at Philadelphia and “do tell me & tell me truly that the bitterness of parting is over & your mind at rest—that you think of me only to contemplate the pleasure of our meeting & that you will permit nothing to distress you while I am gone.” He was even sad to say good-bye to his slave Dick, whom he sent back to Virginia. Perhaps Marshall felt completely alone for the first time. “[E]very step I take carries me further & further from what is to [me] most valuable in this world but I will suppress such sensation & will be quiet if I can only be certain that you are so.” He closed, “I must now give you one positive order. It is, be happy.”42
Marshall knew that it was unlikely that this order would be obeyed, and Polly did not reply to Marshall for some time, much to his anxiety and annoyance.43 When she did, he reminded her that “[g]ood health will produce good spirits.” Marshall’s cheeriness suggests that he had little appreciation of the depths of depression his wife suffered from losing four children. Marshall’s buoyancy and resilience helped him survive the hardships of wartime; he viewed his wife’s unhappiness as a failure of will rather than as a feature of her personality. Marshall’s experience had taught him that reality follows appearance—that if you appeared cheerful and confident, things would turn out. He warned his pregnant wife that her “melancholy may inflict punishment on an innocent for whose sake you ought to preserve a serene & composed mind.” It was not what she needed to hear. And then he closed by assuring her that he would hurry home as soon as possible.44 The French foreign minister, Charles Maurice de Talleyrand-Périgord, however, would have other plans for Marshall.
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MARSHALL MET President and Mrs. Adams for the first time over dinner at the President’s House in Philadelphia on a muggy Saturday evening, July 1, 1797. The president immediately liked the Virginian. He thought Marshall was “a plain Man, very Sensible, cautious, guarded, learned in the Law of Nations.” Abigail, who was a keen observer of human nature, was also impressed by Marshall’s character and judged him an “upright honest man.” Likewise, Marshall was “much pleasd” with this Yankee lawyer whose certitude and prickliness so often rattled his contemporaries.45
While Marshall waited two weeks for a ship, he amused himself in the capital. He dined with Robert Morris, the financier and former senator whose daughter was married to Marshall’s brother James. He had hoped that Morris would lend him money to purchase his share of the Fairfax property, but Morris’s financial empire was unraveling. Morris was once the wealthiest man in Philadelphia, if not the United States, but he was now facing bankruptcy. Marshall noted to Polly in a letter that despite the threat of insolvency, Morris continued to live lavishly. The only sign of impending doom was the absence of visitors.46
Marshall visited old friends and Federalist members of Congress eager to meet the new envoy. He shared ice creams along the banks of the Schuylkill and attended a performance of Romeo and Juliet starring the celebrated actress Ann Brunton Merry. Though he liked the play, once again he thought that Mrs. Merry was no better than the leading actress in Richmond’s own Virginia Company.47 He dined with the William Binghams, prominent Philadelphia socialites, at their gracious estate on the Schuylkill. He appreciated their elegant dining table crowned with an enormous gold vase ornamented with cupids, but he took exception to Mrs. Bingham’s audacious dress, which exposed her elbows.48
After a fortnight in the capital city, Marshall grew restless. He wrote Polly almost daily,
perhaps feeling guilty for his sudden departure and anxious for some word from her. “This dissipated life does not long suit my temper,” he noted. “I woud give a great deal to dine with you today on a piece of cold meat with our boys beside us & to see little Mary running backwards & forwards over the floor playing the sweet little tricks she [is] full of.”49 Had he known he would be delayed so long, he would have preferred to spend the time at home. He had already grown “sick to death of this place.”50
Secretary of State Pickering wrote out lengthy negotiating instructions that he delivered to Marshall on July 15. Pickering listed a number of “offensive and injurious measures of the French Republic” for which the ministers should seek redress, including offensive remarks by the president of the Directory, the seizure of U.S. vessels, the taking of cargo, and the imprisonment and torture suffered by American sailors. Second, the negotiations should establish a claims commission to settle all outstanding disputes. France would have to pay compensation for all U.S. property taken. Third, the United States sought a new commercial treaty that ensured a “perfect reciprocity” in respect to all goods and that all goods on board neutral vessels would be free from capture. In other words, the treaty must recognize the principle that “free ships make free goods.” Finally, the peace commission should clarify that the United States was not bound by the Treaty of Alliance to aid France against Britain. If France insisted that the United States was bound to fight Britain, then the United States would have to repudiate the treaty.51
On Monday, July 17, Marshall set sail from New Castle, Delaware, on the Grace, a small, sleek brigantine. The pilot guided the ship into Delaware Bay and then left the Grace under the command of a Captain Willis. It was a windless, humid day. The sails barely rippled. A blinding sun bleached everything white such that the slowly disappearing coast hovered like the wisp of a cloud over the silver water. The bay seemed strangely tranquil. The great voyage had commenced, but the Grace just rolled languidly on the waves while seagulls mocked its progress.52
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