Marshall’s negotiating tactics had paid off. The final settlement was delayed when President Jefferson replaced Adams after the 1800 election. Jefferson gave Marshall no credit for this diplomatic resolution, but it was probably fortunate that Jefferson rather than Adams had to ask Congress for approval. Congressional Republicans would have squealed like stuck pigs before they would have consented to a request from the Federalist Adams to reward British monarchists with American tax dollars.
As British debt negotiations progressed in the waning months of the Adams presidency, Marshall focused his attention on a more urgent concern: British frigates continued to harass and seize U.S. ships with increasing regularity. And over a nine-year period, the British had impressed about two thousand U.S. sailors into the British navy.22 No single act by any foreign sovereign was more outrageous to American sensitivities.23 On September 20, Marshall sat down at his desk in the new State Department building and began drafting a lengthy letter to Ambassador King that addressed British harassment on the high seas. Marshall’s letter would become another classic State Department document as it set forth a robust neutrality principle that would form the foundation of American foreign policy for the next hundred years.
Marshall insisted that any negotiation over the capture of U.S. vessels and impressment of U.S. sailors must proceed on a separate track from the debt issue. Under Article 7 of Jay’s Treaty, the British had agreed to compensate Americans for losses to any vessel suffered as a result of capture, and a commission was created in Philadelphia for this purpose. Jay’s Treaty had also established a commission in London to settle claims owed to British creditors. Both commissions were deadlocked. The British suspected that the United States was delaying settlement in the hope that if France defeated Britain it would be unnecessary to offer anything to British creditors. And the British hoped that once their troops crushed Bonaparte’s army, the Americans would be more pliable.24
Marshall made clear to Ambassador King that it was the consistent policy of the United States to preserve “exact neutrality” between belligerent powers. The United States had no interest “to mingle in their quarrels.” Therefore, the United States would continue to avoid “any political connections which might engage us further than is compatible with the neutrality we profess.” The United States stood ready to defend itself—which was, of course, highly doubtful. But, Marshall added, force would be used only as a last resort.25
At the same time, Marshall asserted that America was not a fair-weather friend. When France seemed threatened by all her neighbors in 1793, he reminded King that “when, if ever, it was dangerous to acknowledge her new government, & to preserve with it the relations of amity . . . the American government openly declard its determination to adhere to that state of impartial neutrality, which it has ever since sought to maintain.” Similarly, when French armies were sweeping triumphantly across Europe and threatening to invade Britain, “America, pursuing, with undeviating step, the same steady course, negotiated with his Britannic majesty, a treaty of amity, commerce & navigation,” and recalling his own role in the fight over Jay’s Treaty, he added “[n]or coud either threats or artifices prevent its ratification.”26
Marshall objected to Britain’s seizure of contraband, its blockade of European ports, its impressment of U.S. sailors, and the capture of U.S. vessels. Under international law, a ship carrying contraband was subject to capture and condemnation, but Marshall insisted that only certain military goods were contraband. British admiralty courts took the view that anything that could be used to equip vessels, such as timber or naval supplies, could be considered contraband. Marshall argued that timber and naval supplies intended for civilian use were not contraband.27 However, Marshall had argued the converse to Talleyrand when he justified allowing British warships to seize timber and naval supplies on board U.S. ships bound for France.28
Britain claimed the right to confiscate neutral vessels bound for a blockaded port. Marshall protested that the law of nations did not require neutral vessels to honor a blockade unless it was “effective.” An effective blockade meant that the British had completely surrounded a town, not merely stationed some warships off the coast. If there was no requirement that a blockade be completely effective, then “every port of all the belligerent powers, may, at all times, be declard in that state, & the commerce of neutrals be, thereby, subjected to universal capture.”29
Marshall questioned the impartiality of the British admiralty courts. British privateers were enriching themselves at the expense of U.S. commerce, and the courts had failed to impose any reasonable restraint. British admiralty courts rarely acquitted U.S. vessels and never awarded damages to American ship owners. The British courts “tarnish, alike, the seat of justice & the honor of their country, by converting themselves from Judges, into the mere instruments of plunder.”30
Finally, Marshall took on the highly emotional issue of impressment, “an injury of very serious magnitude, which deeply affects the feelings & the honor of the nation.”31 Marshall charged that U.S. citizens were “dragd on board british ships of war with the evidence of citizenship in their hands, & forcd by violence there to serve, until conclusive testimonials of their birth can be obtaind.”32 Marshall had the names of fifty-two American seamen who were impressed because they could not prove U.S. citizenship.33
Of course, the Crown saw impressment in entirely different terms. For at least two centuries, British law gave its naval captains the right to impress any able-bodied male subject of the British Crown into the Royal Navy. The French Revolutionary Wars had created an insatiable need for more seamen. Though the British did not claim the right to impress U.S. citizens as such, they believed in “indefeasible allegiance”; that is, once an Englishman, always an Englishman. Any British subject who became a naturalized U.S. citizen would still be regarded as British for purposes of service in the Royal Navy. Conflict with the Americans arose because of the practical difficulty of determining a man’s nationality at sea. Though Congress has issued U.S. citizenship certificates to U.S. sailors, the British routinely ignored such documents.34 Press gangs kidnapped anyone they regarded as a British subject and forced them into navy service. They were not particularly fastidious about who was a British subject; any man who spoke English was fair game. Marshall asserted that the United States had the right to determine for itself whether an Englishman was a naturalized U.S. citizen. This dispute raised a fundamental question about the nature of citizenship: For Americans, an American was free from foreign allegiances once he was granted citizenship; for the British, nationality was permanent and inalienable.
Marshall believed that the British had a duty to respect the rights of neutrals. Marshall was asserting the sovereign’s right to protect its citizens from injury by a foreign state. This principle, known as “diplomatic protection,” was already well established under customary international law, but this was the first instance of the United States asserting this right on behalf of its own nationals, and it remains a precedent for protecting Americans and their property worldwide. But Marshall went further. He also thought that the British did not have the right to impress British subjects either. For this reason, the United States could protect even a British national on a U.S. merchant vessel from impressment.35 This was a radical new notion. It was generally assumed in the eighteenth century that a state could do whatever it wished to its own subjects. Here was a novel instance in which Marshall asserted the right of one country to protect foreign nationals from their own sovereign. And he insisted that the British government could be held accountable under international law for the actions of its naval officers and privateers on the high seas. In so doing, Marshall anticipated the formulation of universal human rights in the twentieth century.
Marshall set forth a new legal standard to protect neutral nations and individuals on the high seas. Marshall’s strong rebuke to Britain won a brief respite in the harassment of American shipping, but spo
radic impressment continued. Over the next twelve years, between five and ten thousand Americans were impressed, and Britain’s disregard for American sensitivities ultimately sparked the War of 1812. Impressment did not end until the British no longer needed American seamen—after Emperor Napoleon’s defeat at Waterloo in 1815.36
Marshall had a natural talent for reading people and situations. He knew how far he could go without alienating his negotiating partners. With Britain, Marshall fought hard to resolve the twin issues of the debt and the capture of U.S. ships and seamen. With France, Marshall took the opposite tack.
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AFTER TWO YEARS of the Quasi-War with France, American merchants were weary of the interruption of their commerce, and the national economy was suffering because of it. High Federalists in Congress continued to call for a declaration of war against France. Yet President Adams resisted.
But much had changed in Paris in the two years since Marshall’s hasty exit. Napoleon Bonaparte had completed his conquest of most of Italy, the Holy Roman Empire, and Egypt. After Bonaparte’s triumphant return to Paris in October 1799, he managed in the space of a few weeks, with the help of the wily Talleyrand, to depose the government, draft a new constitution, name himself first consul, and declare the revolution finished. From Marshall’s point of view, Napoleon seemed like an unlikely figure to be cast as a popular French hero: a Corsican with a sallow complexion and no discernible political principles apart from his own naked self-interest. But as sometimes happens in times of uncertainty, people are drawn to authoritarian outsiders whose only moral compass is narcissism.
Talleyrand, disgraced after the publication of the XYZ papers, had returned to office as Bonaparte’s foreign secretary. Marshall’s correspondence exposing Talleyrand’s venality had catapulted Marshall to national attention in the United States and landed him in the State Department. Now Talleyrand and Marshall were compelled to negotiate an end to the Quasi-War. This time Talleyrand did not ask for a bribe.
Marshall hoped that a settlement could be reached. Despite the naval war, the United States remained popular with the French public. Talleyrand found it convenient to blame the collapse of prior negotiations on the corrupt behavior of the deposed Directory rather than on his own avarice. France relied on neutral trading countries to carry French commerce. To win support from other neutral powers, Bonaparte believed he must end the Quasi-War with the Americans. He also feared that the United States might ally with Britain against France. Though the Americans could not threaten French territory themselves, they might be tempted to seize Spain’s colonies in Florida and Louisiana. This concerned France as Spain was France’s principal ally, and without the support of Spanish forces, the French Caribbean islands would be vulnerable to attack by Britain.37
When news of Washington’s death reached Bonaparte, he seized the opportunity to improve relations. The French consulate in Philadelphia proclaimed ten days of mourning in honor of Washington. Washington was honored as an ally and an inspiration for the French Revolution. A bust of Washington was erected in the Tuileries, and a memorial service was held in the imposing medieval fortress known as the Temple of Mars. The French government compared the character and achievements of Washington and Bonaparte. No one mentioned that the Directory had criticized Washington for his Proclamation of Neutrality.38
The American peace commissioners, Oliver Ellsworth and William Davie, arrived in Paris in March 1799 to join William Vans Murray in the negotiations. Talleyrand and Bonaparte warmly welcomed them. Over the next six months, the peace commissioners met regularly with French negotiators. Marshall instructed the Americans that they could concede neutrality rights and restitution for the seizure of U.S. ships but that an alliance with France was out of the question. Talleyrand reversed his position from two years earlier and accepted the same terms that Marshall and Pinckney had originally put forth. He proposed that both parties pay restitution for the seizure of ships and cargo, and that all privateering cease. He now accepted the principle that neutral nations had a right to trade freely with belligerents. But Talleyrand insisted that the United States must reaffirm the treaties of commerce and alliance that Congress had abrogated in July 1798 after the publication of the XYZ papers. France wanted to resume its special relationship with the United States as if the Quasi-War had never happened.39 In addition, France wanted the Americans to grant the French navy the same right to U.S. ports as Americans gave to the British navy under Jay’s Treaty. Bonaparte thought it was a question of equity as much as it was a matter of countering British naval power.40
Negotiations proceeded almost comically, with the French offering to restore treaties the Americans no longer wanted, and the Americans conceding principles that the French no longer contested. While the Americans insisted that either party had a right to repudiate the treaty, the French stuck to the pretense that there was no war—merely a disagreement among friends. Talleyrand even denied that the United States could terminate its alliance without France’s permission. A minor spat was no grounds for divorce.
In the summer of 1800, Bonaparte won a string of military victories, and the coalition against France (Austria, Russia, and Britain) collapsed. For a moment, an uneasy peace descended on Europe.41 Bonaparte felt confident that France could vanquish Britain without American support. As a result, the negotiations on ending the Quasi-War reached an impasse.
By late summer, Marshall had no encouraging news from the peace mission to report to the cabinet. Based on the envoys’ first report dated May 17 and received in late August, Marshall wrote to President Adams that “[w]e ought not to be surprizd if we see our envoys in the course of the next month without a treaty.”42 Their second report, dated August 15, arrived on Marshall’s desk on November 1. In it the envoys recommended that “the negotiations must be abandoned or our instructions deviated from.”43
In the meantime, the High Federalists in Congress demanded that Adams either declare war or quit seeking reelection. Hamilton and his Federalist allies talked openly of dumping Adams and running Charles Cotesworth Pinckney instead. Even Adams’s friend Treasury Secretary Oliver Wolcott openly criticized the president and supported General Pinckney. The Federalist caucus endorsed Adams and Pinckney without specifying which one would be their presidential candidate. President Adams had few friends left. He opposed a declaration of war because he had no confidence of winning. As Adams’s circle of trusted allies contracted, he came to rely almost exclusively on Marshall as secretary of state.44
In the face of all this gloom, Marshall stood resolute against the war hawks. He played France off against Britain just as Bonaparte had hoped to play America off against Britain. Marshall had firsthand knowledge of the French secret police and could be confident that French agents were closely following negotiations between Ambassador King and the British foreign minister. He thought that France might be more willing to end the Quasi-War if an entente between Britain and the United States was imminent. (This was the same tactic used by Benjamin Franklin during the American Revolution when he encouraged the French government to believe that a settlement between Britain and the United States was forthcoming in order to pressure France to form an alliance with the United States.) Marshall coolly advised Adams to remain patient. “I am greatly disposd to think that the present government is much inclind to correct, at least in part, the follies of the past,” he assured Adams.45 Marshall could not know how negotiations were proceeding in London or Paris, but he calculated that both France and Britain would prefer reconciliation with the United States. Marshall’s steady hand avoided a costly and unnecessary war that might have depleted the nation.
In October, the peace mission reached an agreement to end the Quasi-War, reestablish commercial relations, and guarantee neutrality rights.46 The agreement postponed the question of compensation for past losses.47 It was signed at an elaborate ceremony in the Château de Mortefontaine, with cannons, fireworks,
and a glittering ball for two hundred guests. In Washington, the Senate swiftly approved the treaty, ending America’s first undeclared war. By giving the peace mission time to complete its negotiations and resisting the temptation to declare war, Marshall and Adams demonstrated that wise statecraft sometimes demands bold inaction.
Unfortunately for President Adams, news of his diplomatic success reached Washington only after his crushing defeat in the 1800 presidential election.
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WHILE THE QUASI-WAR still raged, Marshall faced a delicate balancing act with Spain. In July 1800, the USS Constitution, known as Old Ironsides, captured a French privateer, the Sandwich, at Puerto Plata in what is now the Dominican Republic. Old Ironsides was commanded by one of the U.S. Navy’s legendary figures, Captain Silas Talbot, who had distinguished himself in the Revolutionary War as a privateer. He was a brilliant commander if overly aggressive. There was some question as to whether Puerto Plata was Spanish territory, as Spain insisted, or whether it had been transferred to France by a recent treaty between France and Spain. The Spanish ambassador to Washington, Carlos Martínez, the marqués de Yrujo, insisted that the port had not yet been ceded to France. It still flew a Spanish flag and was protected by a Spanish garrison. Spain’s ambassador accused Talbot of violating Spanish sovereignty and demanded restitution of the French vessel with her cargo.48 Without waiting to hear from President Adams, Marshall accepted responsibility for the violation of Spanish sovereignty and ordered the federal marshal in New York, where the ship was docked, to restore the Sandwich to Spain.49
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