Fighting for National Honor

Throughout much of America’s existence, one of our country’s foremost European allies has been France. Twice during the twentieth century U.S. and French troops fought side by side to liberate Europe from oppression. In a way, Americans were repaying France for its assistance during the American Revolution. The countries have not always been on amicable terms though. During the 1790s America teetered on the edge of war with the new French Republic. Many in the United States had welcomed the 1789 French Revolution as the next chapter in the fight for republicanism, and many yearned to join France’s struggle against Britain. However, President Washington knew how destructive such a course could be, and he urged America’s impartiality. French officials construed this stance as being friendly to Britain and launched attacks on U.S. property. Hoping to prevent war, a three-man delegation travelled to Paris. One was a middle-aged Virginian who had been at the forefront of the War for Independence and the subsequent battle to unite the states into one nation. Now he turned his attention to preserving America’s reputation abroad. His name was John Marshall. Though he may be our most famous jurist, this is the little known story of his refusal to disgrace the United States by paying for peace during the famed 1797-1798 XYZ Affair.

Although too young to protest British policies, John Marshall enthusiastically shouldered a musket to liberate America from tyranny. Born in September 1755 in the frontier settlement of Germantown, Virginia, he grew into a devout republican after reading Roman histories extolling the ancient Republic and watching his father denounce British oppression in Virginia’s House of Burgesses. When the American Revolution began in April 1775, the nineteen-year-old was commissioned lieutenant in the Culpeper minuteman company. In September he marched to the aid of Norfolk. On December 4^th he battled Royal Governor Lord Dunmore’s Redcoats twelve miles south of the city at Great Bridge. Five days later British troops stormed across the bridge. As they came on, Marshall and his compatriots poured a devastating volley into them. Dunmore retreated to British warships offshore, but the Americans continued to defend Norfolk until February 1776, at which point Dunmore no longer posed a clear danger. The militia was subsequently discharged, but Marshall immediately reenlisted in a Virginia rifle regiment. Joining the Continental Army in 1777, he was attached to the light infantry. On September 11^th he fought the British at Pennsylvania’s Brandywine Creek, valiantly holding the enemy at bay while the army withdrew after an all-out attack from front and flank. Three weeks later on October 4^th he stormed Germantown, near Philadelphia, and was hit in the hand while assaulting troops barricaded inside a home. Despite the injury, the twenty-two-year-old remained at his post through the harrowing winter at Valley Forge, and in June 1778 he impeded the British retreat from Philadelphia to New York long enough for George Washington to engage the enemy at Monmouth Courthouse, New Jersey. Promoted to captain, he supported “Mad Anthony” Wayne’s May 1779 attack on Stony Point, New York and “Light-Horse Harry” Lee’s strike on Paulus Hook, New Jersey two months later. In December he returned home and resumed civilian life — though he briefly took up arms in 1781 when turncoat Benedict Arnold invaded Virginia. His service to the United States, however, had only just begun.

In May 1780 the former officer enrolled in Virginia’s prestigious College of William and Mary and studied under George Wythe, one of the state’s preeminent lawyers. After passing the law exam, he opened an office in the new capital of Richmond. Simultaneously, he won election to the House of Delegates and served on the council of state, the body formed to help administer state affairs. In that capacity, Marshall watched as the weak national government created by the Articles of Confederation, America’s first constitution, along with financial woes, threatened the country’s security. Of the unmoored condition of the nation, he would later write, “everything was afloat and that we had no safe anchorage ground.” Believing a stronger union was vital, he championed the 1787 Constitution and played a key role in the June 1788 ratification convention where he passionately defended the document against Antifederalist attacks. His most fervent appeal, however, was reserved for an articulate, rational argument in favor of a national judiciary which would protect the Constitution and individual liberty. When not on the floor, he met with delegates in Richmond’s taverns and at his home and personally lobbied them to vote for the proposed Constitution — a document defining the world’s first constitutional republic. Thanks to his efforts, Virginia became the tenth state to ratify the Constitution. As the new government took shape, President Washington asked Marshall to serve as U.S. attorney for Virginia, and later Attorney General, but instead, he resumed his law career. Nevertheless, he continued to participate in national affairs, particularly after Americans divided over support for the increasingly bloody revolution, which had engulfed the former ally.

Although numerous Americans, including Marshall, applauded the new French Republic, enthusiasm waned in 1793 after radicals launched a brutal Reign of Terror and propelled France into war with Britain. With America torn between its Revolutionary alliance with France and its commercial ties with Britain, George Washington declared America’s neutrality. When French Minister Edmond Genet toured the U.S. that spring, however, he ardently campaigned for the U.S. to join the struggle. Outraged a foreign official would try to interfere in domestic affairs, Marshall convened a statewide meeting in Richmond in August and led the members in unanimously endorsing the President’s policy. In addition, he penned essays defending Washington and denouncing Genet. As the months passed, however, the warring nations undermined Washington — France used American ports to strike the British West Indies, as proscribed by the 1778 alliance, and Britain seized U.S. vessels and seamen. To stave off war with Britain, Supreme Court Chief Justice John Jay negotiated a controversial treaty ensuring peace between Britain and America. Marshall and the Federalists staunchly defended Jay’s Treaty, but French leaders saw it as a betrayal. They subsequently severed diplomatic ties with America and unleashed attacks on U.S. ships. The former allies appeared on the brink of war, but newly-elected President John Adams determined to avoid bloodshed, while simultaneously preserving American honor. In late spring 1797 he appointed Marshall, Federalist Charles C. Pinckney of South Carolina and Democratic-Republican Elbridge Gerry of Massachusetts to represent U.S. interests in Paris. Marshall immediately accepted the mission and briefly visited Adams in the temporary capital of Philadelphia before departing America in mid-July.

Reaching the Netherlands at the end of August 1797, he made his way to Paris, and on October 8^th, hoping to quickly end tensions, the three delegates met Foreign Minister Charles Maurice de Talleyrand-Perigord. The foreign minister, however, sought to delay negotiations in an attempt to extract money from the Americans, a common practice for French diplomats. The positions of the French became increasingly unreasonable. Acting through Jean Conrad Hottinguer, later known as “X,” Talleyrand demanded the U.S. pay all claims lodged against France and compensate ship owners for any damage done by French privateers. He also wanted a sizable loan given to the French government and a fifty thousand pound douceur, or bribe, for himself. A second meeting with Hottinguer and Pierre Bellamy, referred to as “Y,” resulted in a call for the envoys to repudiate President Adams’ May 16^th speech criticizing French strikes on commerce — though Bellamy later suggested disavowal might be bypassed if the U.S. “advanced” France thirty-two million Dutch florins on behalf of the Netherlands, which Holland would repay on conclusion of a peace treaty. The whole affair smacked of French contempt and disrespect. Enraged, Marshall denounced both agents for undercutting U.S. sovereignty, and he urged the team break off talks. Pinckney agreed, but Gerry was reluctant for fear of initiating war. As a compromise, Marshall offered to return home for further instructions, provided France stop attacks on U.S. ships. When the men presented their proposal though, the agents were furious the Americans refused to cooperate and warned of dire consequences if they did not acquiesce to Talleyrand’s demands.

With America’s integrity at stake, the envoys believed additional negotiations were futile, and they decided to leave. Before they could do so, however, Talleyrand sent a third emissary — Lucien Hauteval, code-named “Z.” He described the loan and personal payment to Talleyrand as simply the cost of business. Still, he maintained Talleyrand was America’s friend, and he invited them to meet the foreign minister — though as private citizens since the government still refused to recognize them. Gerry accepted and met the foreign minister on October 28^th. He reported to Marshall and Pinckney that Talleyrand wanted them to authorize the loan themselves. Also, they had one week to pay the douceur or the government would demand retraction of Adams’ speech. Marshall later wrote, “We did not wish to suspend [the decree] for an instant. We were as ready to receive it as we should be eight days hence.” On October 29^th Hottinguer proposed that upon receipt of the bribe Talleyrand would meet two envoys informally and begin negotiations while the third inquired about the loan. However, attacks on commerce would continue and captured cargoes would not be returned. As always, the terms reeked of innuendo and veiled threats. Incensed, Marshall castigated Hottinguer and, indeed, the entire French government, for treating Americans “as enemies in every respect.” On October 30^th, in a desperate effort to get his money, Talleyrand proposed essentially the same terms — two envoys stay in Paris and negotiate a treaty while the third returned home and secured American backing for the loan — the clear insinuation being a treaty was tied to payment of the loan. The foreign minister would, however, insist on his douceur beforehand. Refusing to give in to bribery, the envoys summarily rejected the terms.

Although annoyed by a refusal to “act with justice or to treat us as a free and independent nation,” Marshall believed Talleyrand did not want war with America and determined to wait the foreign minister out. Talleyrand refused to back down though, threatening to oust the team — a bluff Marshall saw through and called. Frustrated, the minister changed tactics as 1798 began — seeking to divide the delegation by dealing primarily with Elbridge Gerry, perceived as “friendlier” to French interests than Marshall and Pinckney. By mid-February the New Englander had met with Talleyrand several times, and alongside other agents, he repeatedly pressed his colleagues for the loan — saying France would accept it after war with Britain ended. Marshall remained adamant, however, that such terms still subjugated America to France’s will.   When the three envoys met Talleyrand in early March, the foreign minister agreed that payment of the loan once peace was established was acceptable, but France intended to use the funds now. To appease American sensibilities though, he proposed ways of concealing the loan from Britain. Marshall countered such deceit violated neutrality by forcing the U.S. to aid a belligerent, and he left the meeting convinced peace could now only happen through humiliating terms.

In the wake of French intransigence, Marshall determined it was time to head home, but he recognized the dangers to American prestige should the envoys appear to be responsible for the diplomatic breakdown. Consequently, he astutely determined to make Talleyrand order his and Pinckney’s departure — placing blame for the mission’s failure on France and fanning the flames of American outrage, which had just erupted with publication of Marshall’s October dispatches detailing Talleyrand’s greed and refusal to recognize the envoys. On March 20^th Marshall received a message from the foreign minister saying he would now only negotiate with Gerry. It was clear Talleyrand wanted Marshall and Pinckney to leave on his terms. As April began, Marshall requested a letter of safe conduct, but the foreign minister insisted he go through the embassy like any citizen. Indignant, Marshall replied that as a U.S. minister he had a duty to stay in Paris. If Talleyrand wanted him gone, then Talleyrand had to take responsibility. In one last act of defiance, the foreign minister offered to begin negotiations with Gerry, but Marshall reiterated that as long as he and Pinckney were still in Paris, Talleyrand had to deal with all three. On April 13^th, realizing he had no other choice, Talleyrand officially asked Marshall and Pinckney to leave and gave them their passports and letters of safe conduct. (Gerry remained behind, and his presence, combined with America’s preparations for war, ultimately forced Talleyrand to retract all his demands.)

Upon his return to the United States, Marshall was given a hero’s welcome for refusing to sacrifice national honor. In 1799, at George Washington’s urging, he ran for, and was elected to, Congress from Richmond. He served his district faithfully until May 1800 when he became John Adams’ new Secretary of State. Under his watch, America finally resolved tensions with France — with the adoption of the Convention of Mortefontaine. Then, on January 31, 1801, just weeks before Thomas Jefferson took office as president, Marshall became Chief Justice of the Supreme Court. He served in that capacity over thirty years, and with his keen intellect and dedication to America, he proved a guiding force for the nation. He presided over such monumental cases as Marbury v. Madison in 1803, which instituted judicial review, or the Court’s ability to declare a law unconstitutional; McCulloch v. Maryland in 1819, which stipulated the national government had supremacy over the states; and Gibbons v. Ogden in 1824, which said the government was responsible for interstate commerce. Taken together, these three cases set the stage for the future of American jurisprudence. John Marshall died two days after July 4, 1835 and was mourned by the nation he had devoted his life to.

Time and again throughout his life John Marshall repeatedly answered his country’s call, and by the time of his death, he had helped establish American respectability in the pantheon of nations. As a young man, he faithfully served America through the long and bitter struggle for independence, and he continued the fight as he toiled for adoption of the Constitution. Later, he helped define the judiciary’s role of in the balance of power debate under that Constitution. But perhaps his greatest contribution to his beloved land was his participation in the 1797 diplomatic mission to Paris — a mission which arguably helped ensure the new nation’s sovereignty. When confronted by French demands that would subjugate America, Marshall refused to back down. He chose to wage a political and ideological battle, and even risked outright war, rather than bring subjugation and shame to his homeland. On the battlefield, in the courtroom, or among the halls of foreign powers — John Marshall devoted his entire life to establishing the United States as a beacon of independence and liberty for the whole world.