In truth, Marshall was filled with anxiety about the future relations between Europe and the United States. France was gathering an enormous army of fifty thousand men to invade Britain. Marshall wrote to George Washington, who had retired to Mount Vernon, that “no force in England will be able to resist them.” Once England fell, France would harness Britain’s economic and military might to conquer North America. The United States had no standing army or navy. The whole War Department had fewer than a dozen employees. All the federal government could do was to ask the state militias for volunteers—hardly a match for the military juggernaut that Bonaparte commanded. The only obstacle between France’s march toward world conquest was France’s chronic lack of funds.59
Washington was incensed by Marshall’s letter. France, his wartime ally, now threatened the independence that Washington and Lafayette had fought for. Washington agreed that yielding to France’s demands for a loan was unthinkable. “Submission is vile,” Washington spat. “[R]ather than having her freedom and independence trodden under foot, America, every American, I though old, will pour out the last drop of blood which is yet in my veins.”60
On March 19, a letter arrived just before dinner from Talleyrand ordering Marshall and Pinckney to go home and leave behind the one minister “presumed to be more impartial.” Gerry’s initial response was that he had told Talleyrand he would not negotiate on his own and that he would “sooner be thrown into the Seine than consent to stay under the actual circumstances.”61
The weather, which had appeared so promising the week before, now turned bleak and cold. Rain clouds darkened the sky. Winter was back with a vengeance.62 At two that afternoon, Gerry returned from another secret meeting with Talleyrand or his agents and advised Marshall and Pinckney that they must request their passports at once or face expulsion. Gerry had changed his mind and decided to remain behind to prevent war with France. Marshall was aghast. It was less than twenty-four hours since Gerry had said he would sooner plunge into the Seine. But this time Marshall held his tongue. There was no point in arguing.63
Pinckney’s daughter Eliza was very ill, and her doctor had prescribed that she go to the South of France to recover before the Pinckneys crossed the Atlantic. Marshall would have to travel alone, but he hesitated to leave without a letter of safe passage from the Directory. He had learned, possibly from Madame de Villette, that the Directory had issued secret orders to French privateers to capture Marshall and Pinckney on their return passage to the States and take them to the West Indies as prisoners. If the envoys were forced to leave France without a letter of safe passage, their best chance to avoid capture would be to dash across the channel to Britain. Marshall asked Beaumarchais to request letters of safe passage from Talleyrand for Pinckney and himself. Beaumarchais promised to try, but he cautioned Marshall against fleeing to England; it would offend the French government and lend credence to the charge that Marshall was a British agent.64
Talleyrand was in no mood to accommodate the Americans. He refused to give them a letter of safe passage, and out of sheer cruelty, he would not permit Pinckney’s daughter to remain in France long enough to recuperate.65 Gerry, who portrayed himself as selflessly remaining in Paris “to prevent a rupture,” made no effort to use his influence with Talleyrand to help. Gerry sniveled that “their conduct to me has not been of that frank & friendly description which I expected.”66 Given Gerry’s secret meetings with Talleyrand and his agents, this sounded like the height of hypocrisy.
Marshall drafted one final memorandum to Talleyrand defending American sovereignty. As to the claim that French consuls had the right to exercise jurisdiction over captured British vessels in U.S. waters, Marshall argued that one sovereign may not exercise an official governmental function in the territory of another. “Every nation has of natural right, entirely and exclusively all the jurisdiction which may be rightfully exercised in the territory it occupies. If it cedes any portion of that jurisdiction to judges appointed by another nation, the limits of their power must depend on the instrument of cession.” Marshall went on to point out that no state had ever conceded the power to protect vessels within their territory, which was a necessary incident to state sovereignty.67
Marshall also rejected the French claim that the U.S. government was using the American press to spread “invectives & a calumnies against the Republic.” As a delegate to the Virginia Ratifying Convention, Marshall had helped to draft the language that became the First Amendment. The French did not understand a free press: No principle was more “sacred” in America “which the Government contemplates with awful reverence; and would approach only with the most cautious circumspection” than the freedom of the press. Though “this liberty is often carried to excess, that it has sometimes degenerated into licentiousness,” this was “an evil inseparable from the good to which it is allied.” Though some newspapers might criticize France unfairly, criticism “has been still more profusely lavished on [France’s] enemies, and has even been bestowed with an unsparing hand on the federal government itself.” Marshall acknowledged that false accusations are “a calamity incident to the nature of liberty.”68 It was a cogent argument that demonstrated how Marshall had grown as a diplomat in a few short months. But it fell on deaf ears.
That evening, as the three envoys were polishing Marshall’s memorandum, Gerry was feeling defensive. He felt that he had been misunderstood by his two colleagues and unfairly criticized. They were “embittered” and conspired against him, he thought. Marshall, who was tired of fighting, sat quietly and watched as Pinckney, who had always kept calm, grew red in the face and finally lost his temper.69
In his thick drawl, Pinckney accused Gerry of embarrassing the American government and risking war with Britain. Pinckney charged that Gerry had secretly negotiated with Talleyrand without his colleagues. Gerry had betrayed Marshall and him by deciding to remain behind to negotiate on his own. Now Pinckney, in Marshall’s presence, had caught Gerry admitting that he had conspired with Talleyrand against his nation’s representatives.70
Gerry replied that Talleyrand had warned him that if he left France it would result in war. Gerry gave them a patronizing look and told them that he was not surprised at their attitude. After all, they must have felt “wounded” after being dismissed by the Directory and jealous of the respect Talleyrand extended toward him. Gerry insisted that the situation was entirely a consequence of their own actions and the respect he had accorded Minister Talleyrand.71 With that, the last thread of civility between them had snapped.
Having threatened Marshall with expulsion, the French foreign minister now kept him waiting more than a week to receive his passport. Marshall and Pinckney were packed and ready to leave at a moment’s notice. Expecting to leave at any hour, Marshall did not buy more wine or send his linen to be washed. There were vessels sailing from Bordeaux and Nantes in a few days, but he had no passport or letter of safe conduct. This was urgent because in a few days there would be no vessel ready to take him to the United States. Whatever Madame de Villette felt, the anticipation was killing him.72
The next morning, Beaumarchais returned with news that their departure was imminent. Talleyrand, however, insisted that since he had never accepted their diplomatic credentials, Marshall and Pinckney would have to obtain their passports through the American counsel general like any other private citizens. Talleyrand added that no letter of safe conduct was necessary and that he expected Marshall to travel through England, which would, of course, bolster Talleyrand’s claim that Marshall “belonged to the English faction [in the United States].” Beaumarchais complained that Talleyrand had behaved toward the American commissioners like a bronze statue with “a foot in the air, with out moving a step.”73
Two days later, on April 13, 1798, the French Foreign Ministry returned passports to Marshall and Pinckney. Pinckney was allowed to accompany his wife and daughter to the South of France while Eliza recuperated. As a parting gift, Beaumarchais gave M
arshall a letter written by Voltaire to Louis XV. Beaumarchais was the editor of a large volume of Voltaire’s correspondence. (Apparently, editors in the eighteenth century enjoyed prerogatives that no modern editor would contemplate, and Beaumarchais filched a few letters as mementos.) Marshall was touched and responded with a note he drafted himself in French. It was a thoughtful gesture, but Marshall’s poor grammar suggested that his time with Madame de Villette was not spent entirely studying the language.74
There is no record of Marshall’s parting words to Madame de Villette, but words could not have expressed the anguish he felt. Though he had long since tired of France, Gerry, and Talleyrand, it must have pained him to leave her. He still loved Polly with all his heart, but her life was confined. De Villette was a spirited, soulful woman whose life was the stuff of theater. For a brief moment, he had been permitted to glimpse a rarified and exotic life, but the curtain had come down. It was simply not possible to live more than one life at a time. Though he had lost four children and been wounded in war, he had never before had to confront his own mortal constraints. He would spend the rest of his life half a world apart from Madame de Villette.
His last letter before he left France was sent to Consul General Skipwith. He asked him to “have the goodness to say to Madam Villette in my name & in the handsomest manner, everything which respectful friendship can dictate.” And then, after a moment’s reflection, he added wistfully, “When you have done that You will have renderd not quite half justice to my sentiments.”75
The road south from Paris to Bordeaux was no easier for Marshall than the rest of his time in France. His carriage broke down, and his luggage was delayed. He finally reached Bordeaux on April 21. He was happy to “bid I believe an eternal adieu to Europe . . . for its crimes.” He had booked a voyage to New York on a ship named for his friend Alexander Hamilton, and he joked to Pinckney that it was “a very excellent vessel but for the sin of the name.” He clarified that he was referring only to Hamilton’s “political crimes, for those of a private nature are really some of them so lovely that it requires men of as much virtue & less good temper than you & myself to hate them.” Marshall was referring to the scandal involving Hamilton’s extramarital affair with Maria Reynolds that had exploded in the Republican press the previous year. Was he also hinting at his own infidelity?76
Though Marshall’s mission to France failed to secure peace, it would soon enough launch his career as a national figure. Moreover, his experience in Paris shaped his conservative ideas about both law and politics. In France, Marshall witnessed the breakdown of a revolutionary society in which ideological extremists showed little respect for life, liberty, property, or the rule of law. Marshall wrote to Washington that he “observd the storm which has been long gathering in Paris. The thunder bolt has at length been launched at the heads of the leading members of the legislature & has, it is greatly to be feard, involved in one common ruin with them the constitution & the liberties of their country.”77
The French revolutionaries had collapsed the separation of powers between the executive, legislative, and judicial branches, and thus jeopardized the rule of law and civil liberties. Marshall thought that the “wound inflicted on the [French] constitution” by the French radicals was “mortal.” Though the radicals claimed that national security justified their actions, Marshall concluded that “[n]ecessity, the never to be worn out apology for violence,” could never justify the “slavery of the press” or other violations of civil liberty.78
Marshall’s experience in Paris convinced him of the fragility of society and the need to diffuse power among the branches of government to safeguard the rule of law. It also made him suspicious of ideologues. Unlike Jefferson, who came away from France with a romantic idea of revolutionary ideology, Marshall’s natural inclination toward moderation and pragmatism was reaffirmed by his Paris mission. So, too, was his sense of American exceptionalism reinforced by his exposure to the venality of the French elite. Finally, Marshall’s dealings with Talleyrand taught him a valuable lesson about the limits of law and the paramount importance of national interest.
These lessons would shape Marshall’s future role as both a statesman and a judge.
CHAPTER THIRTEEN
THE XYZ PAPERS
Back in Philadelphia, Secretary of State Pickering received three dispatches from the envoys at ten in the evening of March 4, 1798. The letters, dated from October 22 to mid-November 1797, were the first to arrive in eight months since the American commissioners set out on their peace mission. The oldest letter was drafted just a few weeks after Marshall had arrived in Paris and shortly after his first meeting with Talleyrand. It had taken more than four months to reach Philadelphia due to the winter weather and the British blockade, both of which impeded traffic from France to the United States. Within the next three days, two more dispatches arrived that brought Pickering up-to-date on the negotiations through mid-January.1
Two of the first three dispatches were written in cipher. Marshall wrote the dispatches in various sets of complex codes that could be easily changed. Each code consisted of columns of numbers that corresponded to more than sixteen hundred words.2 It would take days to decipher these two dispatches, and Pickering would have to wait to read them. The third dispatch, dated January 8, was a quickly scribbled uncoded note from the envoys enclosing the order of the French Directory authorizing the capture of all neutral ships carrying goods to or from Britain and shutting the ports of France to neutral ships that docked in Britain. Pickering received it later that night. It closed, “We can only repeat that there exists no hope of our being officially received by this Government, or that the objects of our Mission will be in any way accomplished.”3 Pickering was dumbstruck to learn that the negotiations were a complete failure. Pulling on his coat, the secretary of state hurried in the darkness from his office on Fifth Street in Philadelphia to the President’s House a few blocks away. Pickering felt that the news was too important to wait until morning, and if he had to wake the president, he would.
As President Adams read the letter, he could barely contain his anger. All this time French ships continued to assault U.S. merchant vessels while no progress had been made on resolving the dispute. Now, to add insult to injury, France threatened to close its ports to American ships.
In a fit of pique, the president sent a message to Congress the following morning informing them that the diplomatic mission to France had failed and that Congress should appropriate funds for the navy and improved defenses. The president also enclosed the short uncoded letter.4 Over the next few days, the other dispatches were decoded and they supplied more details of Talleyrand’s demands for a bribe and a loan, but the president decided not to disclose this to Congress.
President Adams called the cabinet together to discuss how to respond. Adams wavered over whether to declare war on France outright or increase military preparedness first. The cabinet was split between Secretary Pickering and Attorney General Charles Lee, who favored a declaration of war, and Treasury Secretary Oliver Wolcott Jr. and Secretary of War James McHenry, who opposed it.5 The president felt torn between the war hawks and the Hamiltonians, who doubted the country’s preparedness to defend itself against France. On March 19, the president sent Congress a carefully worded message calling for a naval buildup and measures short of war, which he hoped would avoid escalating the conflict while assuaging the war hawks in his own party.
The president’s message failed to quiet his critics. Vice President Jefferson called the president’s message to Congress “insane.” Jefferson proposed that Congress adjourn “in order to go home & consult their constituents on the great crisis of American affairs now existing.” This was purely a subterfuge to prevent a declaration of war. Jefferson hoped that the Republicans would gain “time enough by this to allow [France’s] descent on England to have its effect here as well as there.” Jefferson thought that once Britain was defeated, the United State
s would realize the futility of opposing France.6 It was hard to say whether Jefferson was more concerned about the fate of American merchant ships captured by France or the outcome of the French Revolutionary Wars.
Instead of adopting the measures that Adams requested to build up the navy, Republicans in Congress accused the president of fanning the flames of war and demanded the release of all the dispatches in a mistaken belief that the dispatches would show that Marshall and Pinckney had sabotaged the negotiations with America’s oldest ally. Adams was reluctant to release them, fearing it would embolden the hard-line Federalists and drive the country into war. But as the Republicans’ insistence grew louder, Adams realized that publishing the correspondence would actually embarrass Republicans and help to make the case against France. He shrewdly waited to disclose them until the right moment when the dispatches would have their maximum effect.
The more extreme Republicans in the House proposed a resolution “that under existing circumstances it is not expedient for the United States to resort to war against the French Republic.” Though it may have been true, such a declaration of no war would have the effect of raising a flag of surrender to the French attacks on U.S. shipping. Congressman Albert Gallatin of Pennsylvania, the Republican leader in the House, tried to steer toward a moderate course. Gallatin recognized the need to distance his party from the French Directory: “I am convinced that at the commencement of her revolution there was a great enthusiasm amongst our citizens in favor of her cause,” he told the House. However, he warned the members, “I believe these feelings have been greatly diminished by her late conduct towards this country.” He assured his Federalist colleagues that French attacks on U.S. shipping had ended whatever influence France had once exercised over Republicans. His comments were remarkably candid for a leader of a political party. Gallatin acknowledged that France’s depredations “would be justifiable cause for war for this country,” but the real question was whether it was in “our interest to go to war.”7
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