The Activist

by Lawrence Goldstone

  Also a Convention delegate, Ellsworth, the other key author of the Judiciary Act of 1789, was intelligent, learned, pragmatic, and a reliable Federalist. With Paterson and Wilson, he gave the Court a strong scholarly base; if anyone knew what the Constitution meant, or did not mean, it would be these three. Ellsworth agreed to serve, and was confirmed the following day with only one dissenting vote.1

  As the August 1796 term approached, Washington, who had wanted to leave the presidency in 1792, made the irrevocable decision not to seek a third term. He would leave the nation on precarious footing—ongoing war in Europe threatening to suck it in at any moment, and party divisions becoming deeper and more intractable at home.

  Divisions were rife not just between Federalists and Republicans, but also within the Federalist Party. An extreme faction, led by Hamilton— soon to be called “High Federalists”—competed for party supremacy with a more moderate wing, led by Vice President Adams. Hamilton and Adams were already beginning to loathe one another. Washington was closer to the moderates philosophically, although his personal intimacy with Hamilton remained as strong as ever. The president, in fact, showed Hamilton a draft of his farewell address months in advance but, even with foreknowledge, Hamilton was unable to block Adams from standing in Washington’s place.

  The first term of the Ellsworth Court, August 1796, took place just one month before Washington would formally announce his resignation from public life. The Federalist Party was still theoretically united, and policy prerogatives remained Washington’s. The docket held a number of admiralty cases that were of minor significance, but that allowed the Court to expand and clarify America’s maritime sovereignty, indispensable if the nation were to maintain Washington’s aggressive neutrality.

  Before the Court could meet again, the election of 1796 was held, the first time the presidency was contested. Adams, the Federalist nominee, ran with Thomas Pinckney of South Carolina, the only even potentially Federalist slave state. Thomas Jefferson ran with Aaron Burr of New York, a Republican hotbed whose twelve electoral votes would likely swing the election.

  Campaigning was fierce and bitter, exacerbating the deep fissures between Anglophile Federalists and Francophile Republicans. According to their opponents, Republicans were thinly disguised anarchists who applauded the terror in France (as indeed some did), while to their opponents, Federalists were thinly disguised monarchists who favored an oppressive and aristocratic central government (as indeed some did). Jay’s Treaty was either a capitulation to Britain or a masterstroke to prevent war, depending on which newspaper one read or which speaker one listened to.

  Oliver Ellsworth

  Adams’s problems were compounded by the southern states’ disproportion in the House of Representatives, created by counting for apportionment three-fifths of their slaves (who could not vote, of course).

  In the end, Adams won every electoral vote in New England, New York, New Jersey, and Delaware—61 in all—while Jefferson won all of Georgia, South Carolina, Tennessee, and Kentucky—only 19. The other states split. Jefferson won twenty of twenty-one votes in Virginia, fourteen of fifteen in Pennsylvania, and eleven of twelve in North Carolina, while Adams won seven of eleven in Maryland. When the tally was complete, Adams had defeated Jefferson by a mere three electoral votes, even though he had won the popular vote 53.4% to 46.6%.

  Jefferson had not lost entirely, however. Because of the anomalies of presidential selection in Article II, Section 1 of the Constitution (which had not anticipated the rise of political parties), Jefferson had polled more electoral votes than Pinckney and was therefore elected vice president. So Adams, who as vice president had been utterly loyal to Washington, began his own term as president with a vice president who was his most intense rival.

  Within this stew, the Supreme Court met for its February 1797 term, once again with little to do. “At the February and August Terms in 1797, eight cases were decided, none of which were of great importance. The Terms in 1798 were equally barren.”2

  But if the Court was in stasis, Adams was floundering. Desperately trying to hold to Washington’s policies, out of both loyalty to his predecessor and a genuine conviction that war could sink America, Adams was assailed mercilessly both by his vice president and his party. He was accused of stubbornness, shortsightedness, stupidity, and mental illness. He was laughed at, sneered at, and disparaged for every flaw, real and imagined. Vilification was open, willful, and vicious. But through it all, Adams—who certainly was stubborn, if nothing else—held true to his beliefs.

  In such times, a man is grateful for allies, especially influential and powerful ones, and President Adams discovered that just such a man was living in Virginia. The president was determined to supplement Jay’s Treaty with Britain with a similar accommodation with France. He decided to send a three-man commission to Paris to achieve his goal, bring peace to the United States, and stifle his enemies. One of those three men would be that Virginia ally, John Marshall.

  TWELVE

  AS SIMPLE AS XYZ: MARSHALL ASCENDANT

  HISTORIANS HAVE DEBATED whether or not John Marshall was a man ruled by driving ambition, but he certainly at least did not wait passively for opportunity to be thrust upon him. Throughout his long career, his achievements were defined more by acute political instincts and deft manipulation of chance than by intellect, personality, or integrity. No more compelling an example of his political deftness, self-mythologizing, and seizing of opportunity exists than in the XYZ Affair.

  Almost from the day he took office, John Adams had been obsessed with avoiding what he was convinced would be a disastrous war with France. While Jay had turned out to be an ideal emissary to England, no single individual seemed to have sufficient skill and reputation to achieve a similar result in Paris. (Jefferson might have filled the bill, but Adams thought it improper to send him, and the vice president would certainly have refused to go.1 ) Adams then settled on a three-man commission consisting of Charles Cotesworth Pinckney, Elbridge Gerry of Massachusetts, and James Madison. The commission was geographically and politically diverse, and all three men had been delegates in Philadelphia. Pinckney, as it happened, was already in Europe. He had been sent by Washington on a special diplomatic mission to France to help resolve the crisis, but, after trying unsuccessfully to be taken seriously by the French government, he had been expelled from the country and forced to travel to Amsterdam.

  The commission idea received, at best, a lukewarm reception on all sides. Adams’s fellow Federalists were in particular none too pleased with Madison as an emissary to anywhere, but their opposition became moot when the Virginian refused to consider the idea. Adams was determined to press on, however, and in Madison’s place chose John Marshall.

  Marshall had rejected numerous overtures from Washington to national office, but this commission he could not turn down. Although Marshall was “engaged with some others in the purchase of a large estate,” and thus reluctant to leave, he also “felt some confidence in the good dispositions which I should carry with me into the negotiations, and in the temperate firmness with which I should aid in the investigation which would be made.”2 Others did not find Marshall’s explanation convincing, feeling instead that his decision to accept the commission was due to an inability to finance the Fairfax purchase. In Europe, he might assist his brother James in securing the funds.3 Whatever the reason, Marshall journeyed to Philadelphia, stopping to see Washington at Mount Vernon on the way, and, after meeting with Adams, set sail for the Netherlands in July 1797, to join Pinckney.

  He arrived in late August, met the South Carolinian, and sat about waiting for Gerry. When Gerry had still not arrived by mid-September, Pinckney and Marshall debarked for Paris without him. In the first week of October, Gerry finally arrived and the delegation was ready to begin its vital undertaking.

  France was as much a revelation to Marshall as it had been to every American on his or her first trip across the Atlantic. Not only were the buildings older a
nd more grand, the fashions more extravagant, the theater and opera more vital, but the manners and mores seemed to be from another planet.

  The mission itself soon descended into the kind of Molièresque social farce that the French so enjoyed. In the midst of a Paris in the throes of a revival of cultural excess following the dour brutality of the Terror, three earnest, sober, hopelessly unsophisticated Americans (by French standards) lay ensconced in a hotel, expecting to enter into grave negotiations with the very highest powers in the French government. The Americans were convinced they would quickly be granted access to any or all of the five members of the Directory, the ruling executive in France after Robespierre and the Convention. If, however, they could not meet the Directors immediately, they expected little difficulty in engaging the new foreign minister, Charles-Maurice de Talleyrand-Périgord, Bishop of Autun.

  French priorities, however, turned out to be far different. Talleyrand, a master diplomat, rake, seducer (despite a crippled leg), atheist, churchman, philosopher, and most of all survivor, had once quipped, “Regimes may fall and fail, but I do not.” Hailing from one of the oldest and most distinguished families in France, Talleyrand had come to prominence during the monarchy, converted during the Revolution, avoided the Terror, and, by 1797, after two years in America where he had become friends with Alexander Hamilton and been a houseguest of Aaron Burr, had been appointed to head foreign affairs for the Directory. *

  A more severe contrast in style and outlook could not have existed than that between the bluff, plain-spoken Americans and the evasive, unctuous French, for whom paying for the privilege of access to government officials was standard practice. Bribery to the Americans, perhaps, but a legitimate cost of doing business in France.

  Talleyrand received the three ministers immediately, spoke to them in fluent English, provided them “cards of hospitality” (the lack of which had gotten Pinckney banished earlier), and assured them that the French were every bit as desirous of normal relations as were they. He then disappeared for a week, returning to regretfully inform the Americans that none of the five Directors would meet with them. More weeks of exasperating delays, false promises, and interminable waiting followed before Talleyrand ceased his accessibility altogether.

  Instead, a series of “colleagues” showed up at the Americans’ hotel claiming that, for a fee, the wheels of progress might be slathered with the proper grease. The three were outraged, considering the demand not only excessive—the Treasury could scant afford the $250,000 demanded—but a slur on America’s honor. They refused.

  The emissaries from Talleyrand—labeled “X,” “Y,” and “Z” in Pinckney’s dispatches—continued to press the Americans, but neither side would budge. Only Gerry was willing to even consider paying the money. Ultimately, Marshall and Pinckney decided to depart France, leaving Gerry behind, powerless, to deal with Talleyrand and his minions.4

  Marshall was the junior member of the commission and is said to have appointed himself as the recorder of its proceedings. He also composed the dispatches. His motives for becoming the commission chronicler have been a subject of speculation, but Marshall’s is the only record of what transpired in Paris. He could thus “impose his definition of what each succeeding phase of the commission’s dealing meant.”5 So, when Marshall’s account of the scandalous behavior of the French and the refusal by the American delegation to knuckle under reached America in early spring, Pinckney and Marshall were hailed as heroes.

  But Marshall had not yet returned to America to hear the accolades. Despite the frustrations, Marshall was in no hurry to leave Paris. Like Jefferson, he had become enchanted with the city and its people. There is even reason to suspect that he engaged in a romantic dalliance with a beautiful widow, the Marquise de Villette, during his stay. In any event, when the talks, such as they were, finally collapsed, and after penning a memorial to Talleyrand eloquently defending American neutrality, Marshall and Pinckney sailed for home.

  When Marshall docked in New York on June 17, 1798, he learned that his dispatches had stoked the nation’s ire and there were widespread calls— at least among High Federalists—to declare war. Self-righteous patriotism ran riot. The slur on America’s honor had even temporarily silenced Republicans, who found it easier to defend the Terror than Talleyrand. Congress approved a number of measures to strengthen the navy and, on July 7, rescinded all treaties with France. Hamilton himself would begin to raise an army with Washington titularly at the head, but which Hamilton himself intended to lead.

  But John Adams was nothing if not resolute, more determined than ever not to enter into a war he was convinced could destroy the nation he had helped to build. Allies were scarce, however. Even in his own cabinet, Washington holdovers James McHenry at the War Department, Timothy Pickering at State, and Treasury Secretary Oliver Wolcott made little secret that they would have preferred working for Hamilton. Adams did discover a new collaborator, however—John Marshall, who had traveled from New York to Philadelphia in late June to a hero’s welcome.

  * A famous anecdote had one of his ancestors accosting tenth-century monarch Hugh Capet and demanding, “Who made you king?”

  THIRTEEN

  FIRST IN QUASI-WAR: ADAMS ON A TIGHTROPE

  ADAMS MIGHT HAVE REFUSED to declare war on France, but that did not mean hostilities were over. From the time of Marshall’s return in 1798 until the presidential election in 1800, the United States and France engaged in what has been dubbed “The Quasi-War.” The conflict was fought exclusively at sea. French privateers seized American merchant vessels, and the newly strengthened American navy assaulted French vessels in the Atlantic and the Caribbean. Though hostilities were regular and intense, neither side seemed anxious to escalate to land war.

  At home, Congress, in high dudgeon, passed four laws in the summer of 1798 destined to be among the most notorious in American history. Now lumped together as the “Alien and Sedition Acts,” they consisted of the Naturalization Act, which extended the residence requirement for citizenship to fourteen years (from five); the Alien Friends Act, which allowed the president to deport any resident alien he, on his sole authority, considered dangerous to the peace and safety of the United States; the Alien Enemies Act, which allowed the president to deport resident aliens if their home countries were at war with the United States; and, most controversial, the Sedition Act, which made publishing “false, scandalous, and malicious writing” against an official of the government a criminal offense.

  Any chance at rapprochement that might have been possible between Federalists and Republicans vanished with the passage of the Sedition Act on July 14, ironically Bastille Day. The bitterness that the restrictions on free speech engendered was so intense that, in the carryover during the presidential election of 1800, Republicans considered military action to prevent Federalists from retaining the presidency.1

  Nor was the Sedition Act for show. Federalist prosecutors were in no way shy about indicting and jailing Republican critics, including Benjamin Bache, Benjamin Franklin’s grandson, whose newspaper, The Aurora, was vituperatively partisan. (Bache died of yellow fever before he could stand trial.)

  The judicial branch, however, appeared as though it might remain above the fray and not be called on to rule on the constitutionality of the acts. The First Amendment had yet to be applied to the states, so there were no grounds for judicial challenge there. Jefferson and the Republicans opposed the acts on Tenth Amendment grounds—that Congress had usurped state sovereignty by extending its powers to those that the Constitution had reserved for the states. This opposition eventually took form in the Virginia and Kentucky Resolutions, declarations of states’ rights, rather than a challenge in the Federalist-dominated Supreme Court.

  As the storm raged on, just after the end of the August 1798 term of the Supreme Court, James Wilson died. Adams solicited Marshall to fill the vacancy, even instructing Secretary of State Pickering to prepare a commission. Playing on Marshall’s newfound notoriety,
Adams told Pickering that Marshall had “raised the American people in their own esteem.”2 But he also realized that Marshall, who had repeatedly refused Washington’s entreaties to assume national office, might decline. So, in addition to asking him to take the job, Adams also inquired as to whether Bushrod Washington would be willing if Marshall was not. Only thirty-four, George Washington’s favorite nephew and heir to Mount Vernon, Bushrod Washington was small, fragile, blind in one eye, and very much Virginia gentry. Like Marshall, he was moderate in his Federalism. Marshall did indeed once more decline to leave Richmond. Bushrod Washington was nominated in his place and quickly approved by the Senate.

  Marshall’s avoidance of national office ended soon after, however. He was summoned to Mount Vernon, where George Washington, now just months from death, “gave Marshall a stern directive to run for office.”3 Washington wanted Marshall in Congress, and Marshall agreed. In Republican Virginia, despite Marshall’s now impeccable credentials, only his reputation for moderation allowed him a chance for election. Playing up his centrism and distancing himself from the Alien and Sedition Acts, Marshall was elected and arrived in Philadelphia in early 1799 as Virginia’s, and possibly the entire South’s, most prominent Federalist. He also quickly became John Adams’s most valuable congressional ally.

  Adams understood that if the Quasi-War could be terminated successfully, the other issues might, if not disappear, at least become manageable. The president had not given up on negotiating with France. In early 1799, he proposed another special commission, this time nominating William Vans Murray, a diplomat who knew the ins and outs of the Byzantine French government (as well as was possible); Patrick Henry; and Chief Justice Oliver Ellsworth. Ellsworth, who would be senior, was of impeccable reputation and, after all, sending the sitting chief justice had worked with Jay and Britain. Henry declined, and Adams eventually chose William Davie, governor of North Carolina and the man most responsible for that state’s ultimate ratification of the Constitution.