The American Consul at London
Editorial Note

When news arrived early in the summer of 1790 that England and Spain were on the verge of war, the administration firmly committed itself to a policy of neutrality, while at the same time seizing the opportunity to free the United States as much as possible from commercial restraints imposed by both powers. No one doubted that, if war came, there would be increasing resort to the usages of centuries by which belligerent nations had made a convenience of the flags of neutrals, thereby protecting their own trade while enriching the northern European commercial centers. Such had been the practice from the time of the Hanseatic League onwards. A state of war indeed only intensified strategies employed at all times when mercantile houses found their interest in concealing the true ownership and nationality of their trading vessels.

The mere threat of conflict in 1790 led at once to the appointment of an American consul at London and to Jefferson’s instruction to him and other consuls to be on guard against granting entry or countenancing the sale of any vessel purporting to be American that was not truly such.1 Simultaneously, the brigantine Rachel cleared New York for London under the command of Nicholas Duff, having on board William Green, a New York merchant who had suffered ruinous losses in the East India trade and who was en route to London to prosecute his case against those whom he held responsible. According to his own testimony, Green was the sole owner of Rachel and her cargo of potash, pig iron, and staves. He also testified that he had acquired her less than a month before from the well-known New York merchant, Nicholas Brevoort. On several occasions Rachel had been admitted to the ports of Great Britain and Ireland, the last time only three months before Green acquired her. But between that voyage and the one which carried her new owner to London, the possibility that England would soon be at war insured a closer scrutiny by customs and admiralty officials of both neutral ships’ papers and seamen who claimed to be American citizens. Though her register was silent on the point, Rachel had been built in France some years earlier, a fact which, under the circumstances, was enough to guarantee that her papers would be examined with extreme care. She also had on board William Knox, brother of the Secretary of War, who had just been appointed consul at Dublin. Knox, unfortunately, happened to have in his baggage a fowling piece made by a famous London gunsmith which he was taking back for repairs as a favor to its owner, Henry Cruger.2 Ironically, Knox also bore Jefferson’s instructions to Joshua Johnson admonishing him to guard against vessels abusing the American flag.3 Whether or not Rachel was such, the consequences were unfortunate for her, for her owner, and for the American consul at London who prosecuted her case so vigorously.

The case of Rachel leaves her true identity somewhat less certain than it appeared to the Lords of the Treasury who, after deliberating two months, refused her entry because she had been built in France. Given the circumstances, this is understandable. But the incident, to which the American consul devoted such an unusual amount of time and effort and which he reported in more detail than he gave to any other, tells us a great deal about Joshua Johnson. Like the dispatch quoted above in which he innocently disclosed an intent not to be too scrupulous in preventing abuses of the American flag because these were beneficial to trade—a disclosure which must have shocked the Secretary of State, whose aim was precisely the opposite—Johnson’s handling of the Rachel incident reveals much about himself, about his concept of his official role, and about his conduct as consul. The case is important not as an isolated example but as a reflection of the man and his setting at the capital where questions of crucial importance to American political and commercial relations were being decided.

I

So far as American interests were concerned, London was then, as Johnson himself declared, “the first City in the World.”4 There, and to a much lesser extent at Liverpool, Bristol, and other British ports, a large proportion of American commerce had resumed its accustomed channels, just as Lord Sheffield and others had predicted. But the old problems—American debts, difficulties with customs officials, impressment of seamen, and so on—had also continued and in many cases had been magnified by the lingering bitterness over the dismemberment of the empire and by the mercantilist policies of Lord Hawkesbury. This was a situation which called for all of the address and resourcefulness of a skilled diplomat. In the absence of formal diplomatic relations and as the only official representing the United States at the capital, Johnson was expected to go beyond the normal consular functions—to do “somewhat more,” as Jefferson informed him, in providing political intelligence and acting in general as a quasi-diplomatic character.5 Lacking ministerial rank made the unique assignment all the more difficult by depriving Johnson as consul of the opportunity to deal directly with the Secretary for Foreign Affairs, a handicap of which he was perhaps too sensitively aware. But there was a more serious impediment of which he seems not to have been sufficiently conscious.

This, a formidable obstacle which occasionally impeded his consular activities and even at times placed him at odds with his own government’s policy, arose from the fact that Johnson had been absent from his native land since 1771. In that year, at the age of 29, he had gone to London as the resident partner of the recently formed Annapolis firm of Wallace, Johnson, and Davidson. This was the first group of colonial entrepreneurs to challenge with American capital the near monopoly enjoyed by British merchants in shipping goods to Maryland and Virginia and receiving consignments of tobacco in return—a system of trade and credit so disadvantageous to the colonists that, as Jefferson expressed it, their “debts had become hereditary from father to son for many generations, so that the planters were a species of property annexed to certain mercantile houses in London.”6 This rather overstated the case, but the hold of the British merchants was so firm that they naturally resented the effort of an American firm to break it. Johnson succeeded in part because of methods of duplicity such as he occasionally exhibited as consul. At the outset, facing a cold reception in London, he gained the support of the influential London merchant Osgood Hanbury only by assuring him that Wallace, Johnson, and Davidson had no intention of engaging in the tobacco trade. This sponsorship enabled him within a few weeks to dispatch a cargo of goods worth more than his firm’s capital. Yet, almost immediately, he began urging his partners to do what he had assured Hanbury they would not do. Ultimately, they yielded to his arguments about the profits to be made in accepting tobacco shipments on consignment. By 1775 Johnson had shipped goods valued at £47,638 sterling and had sold 4,475 hogsheads of tobacco on consignment—some of it purchased by a London firm of which he was a silent member and about which he did not feel it necessary to inform his American partners. He was equally reticent with planters who sent tobacco on consignment, as on the occasion when he informed the shippers that he had sold their cargo at 7d sterling while, at the same time, he himself was disposing of tobacco at 12d. Within a short while Johnson had moved into a house near the Exchange, had adopted a mode of life he felt suited to a successful merchant, and had annoyed his partners with insistent demands that he be allowed additional compensation for living and business expenses.

When the firm was dissolved after the outbreak of hostilities, Johnson remained in London until 1778 seeking to carry on business by himself. This placed him in an ambiguous situation, with the result that at times he gave a double set of instructions to his ships, the one to show any inquiring English vessel that the cargo was intended for use by the royal forces in New York, the other indicating that the real destination was the Chesapeake. In that year Johnson removed to Nantes to engage in business and also to seek loans from France as agent for Maryland, an activity in which he claimed he was hampered by Benjamin Franklin. In 1779 Congress named him as agent to settle accounts with its commissioners and others in Europe, but failed to make provision for compensation. When Franklin asked him to come to Paris with a clerk so that, in Silas Deane’s absence, they could go over unsettled accounts and adjust the business as best they could, Johnson flatly refused and asked that Congress appoint another in his place. He explained to William Carmichael that he was determined to resign both the Maryland agency and that of Congress because of the uncertainty of reimbursement for public services.7

In 1781, with Johnson residing in Nantes, the firm of Wallace, Johnson and Muir was created to engage in the expanding tobacco trade with France and the marketing of French goods in the United States. The business of the house rapidly expanded in the post-war years, especially since it acted as an agent for Robert Morris under his contract guaranteeing the sale of 20,000 hogsheads of tobacco per annum for the three years ending in 1788. In 1783 Johnson returned to London, where the new firm far outstripped the success of the earlier one. But the collapse of Robert Morris’ monopoly and the increasing competition of British merchants brought it into serious difficulties. Johnson himself contributed to the firm’s problems. Charles Carroll, one of its most influential customers, complained that Johnson was not as punctual in correspondence or as attentive to business as formerly. Johnson’s partners were so distressed over his mismanagement that the senior partner, Charles Wallace, went to London in 1785 to straighten matters out. In that year Wallace, Johnson, and Muir owed London creditors a staggering total of £240,000. By then Johnson and his partners had become so alienated in their personal relationships that dissolution of the firm was a foregone conclusion. In the spring of 1787 Johnson called together the major creditors and placed the firm’s London affairs in their hands as trustees under an arrangement which assured him against arrest or suit for two years. On January 1, 1790, only a few months before Johnson was appointed consul, the firm was dissolved, but the acrimonious dispute over the division of its assets continued until Johnson’s death in 1802. Just a few months before his appointment as consul Johnson announced that he would continue in the tobacco consignment business on his own, but with no intention of shipping cargoes. Soon thereafter, he described himself as the resident partner of a new house—Wallace, Johnson, and Morris—about which little is known.8

Johnson’s long years of mercantile experience in London and Nantes reveal much about him and his manner of conducting business. He had experienced both successes and reverses, more than once fearing arrest as a debtor. He had not always been candid or even scrupulous in his relations with his partners and their customers. Under an appointment by Congress he had placed personal compensation above the performance of public duty. He was undeviating in his devotion to his country’s cause and its interests as he conceived them. But his long absence abroad had put him more or less out of touch with the transforming events in America that had so greatly altered his countrymen’s view of themselves, of their institutions, and of their relations with the rest of the world. In some ways his years in Europe had affected him much as Jefferson feared William Short, or any official representative, would be if he remained too long absent from his native land. A slight but revealing indication of this is to be found in Johnson’s communications as consul to British officials, and even in those to Jefferson, in which he seemed to regard himself as being responsible to Congress rather than to the Executive, as if the structure of government had not been drastically altered since his appointment at Nantes. Another and more important manifestation was his emulation of the forms and practices of foreign consulates as he had observed them in France and England. This derivative influence affected his official conduct in various ways, some trivial and some serious, which neither the experience of European consuls in the United States nor the views of the Secretary of State would have sanctioned.9 The first thing Johnson did on receiving his commission was to have two seals cut bearing the arms of the United States. He did not customarily wear the authorized uniform of a consul, but was prepared to do so on special occasions. On being granted his exequator, he expended a not insignificant sum in connection with that formality, a public charge quite customary with European consuls but unauthorized by American law, as Jefferson was obliged to inform him.10

But these were matters of slight significance as compared with the manner in which Johnson sought to maintain the dignity of his consulate and to protect that of his nation by emulating the practices of European consulates. Observing that other consuls were paid salaries and were given perquisites as well as authority denied him, Johnson was importunate in his plea for compensation and additional powers. There was merit in his argument, especially for a consul in London where so much American trade was centered. During his first year in office, Johnson spent an inordinate amount of time in appeals to officials in the Treasury, Customs, Admiralty, and Foreign Office concerning impressed seamen, deserters who claimed to be British subjects, crews charging their officers with cruelty, and vessels seized under the revival of an act of Charles II forbidding American vessels to trade with Guernsey and Jersey. The end of a war crisis brought effects worse than the cruelties of press gangs, when large numbers of sailors were thrown “loose on the World … in the most wretched starving situation,” unable even to get a passage home.11 There were also appeals from indigent Americans of all sorts, including women, who were stranded and needed aid. Not surprisingly, there were numerous impostors, sometimes as difficult to detect as a foreign vessel masquerading under the American flag.12 There were also unusual cases, such as the Baltimore sea captain who became insane and whom Johnson, out of compassion, placed in suitable accommodations and finally paid for his burial expenses.13 The burdens placed upon the London consulate were not only greater than those experienced by American consuls in France, Italy, Spain, and Portugal, but the advantages from trade were even less. “I am appointed to a place,” Johnson wrote to the Secretary of State, “where every Merchant in America has his correspondent, and who will not remove his Business so long as he does well; but if the Captain of his Ship is arrested by a Seaman; or he gets into any Scrape, it falls on me to protect, and extricate him; whilst the Merchant is freed from any trouble, and he is reaping the Advantages of American favors.”14

It is little wonder that, under these circumstances, Johnson became more importunate than any other person in the consular establishment—with the possible exception of Sylvanus Bourne—in urging that Congress provide compensation for services rendered the public. American consuls at Lisbon, Bordeaux, Marseilles, and other ports might be content with the prestige of the office, plus the undeniable trade advantages a consul in such places enjoyed. But Johnson was both blunt and insistent in urging that Congress establish regulations for the consular service, adopt European practices by levying tonnage and other duties on merchant vessels to provide for indigent seamen, and, especially, support their consulates in proper dignity by providing fees and salaries. Johnson animadverted at some length upon the subject even in his letter of acceptance, expressing the hope that Congress would be liberal enough to enable him to continue in office. Betraying his lack of familiarity with the divided sentiments of his countrymen on the need for a consular establishment, he soon followed this with information about consular regulations in France and elsewhere which he regarded as suitable models.15 Even before Congress adjourned, he confided to James Maury that he had told the Secretary of State he would resign if adequate compensation were not provided by law.16 In the spring of 1791, as he anxiously awaited news of the consular bill, he declared that he would not continue in office beyond the next Congress “unless something handsome is allowed me.”17 Late in May he was astonished that he had not received a line from Jefferson about the fate of the bill. When he learned from newspapers that Congress had adjourned without making any provisions for the consular system, he immediately proposed to William Knox and James Maury that they reach “a proper understanding and … have a memorial ready to present to Congress, pressing them to come to some decision.” Johnson of course said nothing of this to the Secretary of State. Knox, who at first promised to draft such an appeal, advised instead that each should write individually to their “friends … and get them to interfere.”18 In his appeal to Jefferson, Johnson recited the burdens of his office and asked that his account of them be placed before the President so as to enable him to judge what compensation should be allowed and to “urge Congress to pass an act for that purpose.” This suggestion, perhaps intended to bring Washington’s friendship with the family to bear, was accompanied by Johnson’s promise to persevere at least until he knew what was to be done at the next session.19

What happened at the next session was even more disappointing. One of the persons to whom Johnson had written—probably Robert Morris—had sent him a copy of the consular bill as soon as it passed the Senate. Johnson thought the result “miserably Parsimonious” on the part of Congress, though the House of Representatives had not yet acted.20 The bill, he declared to Jefferson, “makes but a miserable compensation to me for the loss of time, vexation and trouble I have had.”21 This was disappointment enough, but when Johnson finally received the bill as passed and found he was obliged to give bond, he looked upon this as insult added to injury. He bluntly told Jefferson that he considered the requirement a direct violation of the “promise” made when he was appointed and flatly declined to give bond. He of course understood what it would mean to defy the law and so gave assurance that he would “continue to execute the functions of the Office … for the benefit of my Country until the President shall be pleased to appoint some other person to take my Place.”22 Jefferson naturally rejected the idea of a promise violated or even made without lawful authority, praised Johnson for his faithful and useful services, and urged him to reconsider so that the President would not be obliged to appoint a successor who would meet the legal requirement. On the outbreak of war early in 1793 Johnson did reconsider and supplied the bond. Four months later he informed Jefferson of the fact.23 Opposition in Congress to a salaried consular establishment may have worked a hardship in Johnson’s case, but his long absence from home undoubtedly contributed to his failure to understand the reasons for it and to make him feel he had been ill-treated by the country he served, the more so since he thought Jefferson communicated with him too infrequently.24

For the same reasons, Johnson misjudged the feelings of his countrymen about the extent of consular powers. Having observed the customs of foreign consulates, he naturally sought to exercise the powers of his office in like manner and failed to realize that this would not have been tolerated in his native land. Perhaps unaware of the feelings aroused by clashes between state officials and British and French consulates in Norfolk, New York, and elsewhere during and after the war, Johnson sought coercive powers over merchant vessels and exclusive jurisdiction over disputes between masters and crews. Had he been closer in touch with sentiment in America, he might have known that there special privileges and immunities were extended to consuls by courtesy, that the law of nations did not apply to them, that it had been purposely excluded from the Consular Convention of 1788, and that, until Congress established regulations, state laws alone determined consular functions and jurisdiction.25

II

At the outset, Johnson sought detailed instructions even on such routine matters as the proper form for reporting entries and clearances of American vessels and their cargoes, sensibly suggesting the desirability of a uniform style of reporting for all consuls.26 Surprisingly, systematic as he was, Jefferson failed to act upon the suggestion and issued only general instructions. Johnson wondered whether he had power even to administer oaths as other consuls did and urged that Congress adopt strict and explicit maritime regulations giving consuls coercive power over masters of vessels comparable to those in France. Lacking such authority, he thought his appointment would be of no avail and would “reduce our Country in the eyes of this Government.”27 He was particularly disturbed that American sailors were habitually running to petty attorneys on every frivolous pretext, but called this to the attention of the Secretary of State as a burden because he was obliged to intervene.28 To his colleague James Maury, however, he put it in a quite different light. “In cases of Disputes between the Captains and their Men,” he declared, “I do not suffer either the Courts of Justice, or the Commons to take cognizance of it, but order them before me. This is the custom of other Consuls, and I doubt not but you will pursue it and support the Dignity [and Honor of the office].”29 Two weeks later he informed Maury that, until Congress prescribed their duties, he would follow the usages and customs of European consulates. “Wherever you can accommodate between Master and Men,” he added, “it is best. But I do not hesitate interfering peremptorily, not only with them but with Proctors and Attorneys. I suffer them not by any means to interfere between Americans, as it is an invasion on the Honor and Dignity of our Office, as that takes Cognizance of all Disputes except the case of assault. Them the laws of the Country will punish.”30 The words, echoing those of the Comte de Moustier and Martin Oster protesting against the invasion of consular powers and immunities by local officials in the United States, provide a measure of the gulf separating Johnson’s views and the role of the consular system as envisaged by his own government.

Indeed at times Johnson sought to support the honor and dignity of his office by going beyond the practices of European consulates. This was exemplified by his interference in the suit brought by two seamen against Captain Crozier of the American vessel Greyhound, threatened by the Admiralty with seizure unless the claims of the seamen were met. “I am at a loss to understand what the Lords of the Admiralty mean,” Johnson wrote, “by interfering between Americans, the subjects of the United States. It is contrary to the Law of Nations and far from being friendly. … Should their Lordships persevere in their directions to you to arrest the Greyhound, I shall not appear in Court to contend the Matter, but you may pursue to Judgment, Condemnation, and Sale; then I will transmit to Congress those proceedings and be governed by their directions in future.”31 This was a fairly typical example of the harsh language which Johnson admitted he was often compelled to use. He thought the Admiralty would not dare “such a breach of the law of Nations.”32 The two seamen had left the Greyhound, joined the royal navy, and brought suit to recover their wages. Johnson thereupon informed Maury that he had a suit pending in the Court of Common Pleas “highly interesting to the Commercial Interest of all Europe.”33 He also invited all foreign consuls in London to attend the trial of this “Cause of the utmost consequence” so that they could transmit accounts of it to their respective courts.34 Against the opinion of the Lord Advocate, Henry Erskine, and even contrary to the advice of his own attorney, Johnson refused to compromise, insisted upon a jury trial, and hoped to set a precedent which “would have ascertained the power of Consuls, and prevented those low R—from teazing us any more.” But in this he was disappointed, for at the last moment the suit was withdrawn. Johnson, feeling both frustrated and uneasy, then formed the quixotic scheme of drawing up a memorial to Parliament. He asked the other consuls in London to join him in signing it, hoping for the passage of a bill “to prevent … Attornies from entering Actions for Foreign Subjects against their Captains.”35 He freely and somewhat proudly reported all of this to James Maury, but revealed none of the circumstances to the Secretary of State. The only allusion that he made in his dispatches to this extraordinary effort to extend his authority and jurisdiction was to justify the expense of a suit which had accomplished nothing. He reported to Jefferson that he had been obliged to defend Captain Crozier because otherwise an ill precedent would have encouraged the crews of all vessels to sue for pay. Worse, veiling the truth in a self-serving equivocation, he asserted that he had succeeded and had protected American masters against all such “innovations.”36 Even the litigious Oster at Norfolk had not gone quite so far in asserting the authority and dignity of his office.

Jefferson, reflecting his own style of diplomacy, had been careful to warn Johnson and other consuls against fatiguing government officials with unimportant matters, but rather to husband their good dispositions for occasions of some moment, “never indulging in any case whatever a single expression which may irritate.”37 This prudent counsel was all the more applicable to Johnson as the only American official at the capital. The absence of formal diplomatic relations, the sensitivity of many Englishmen to the humiliating defeat at the hands of colonials, the overbearing attitude of some American seamen—equalled and often exceeded by the insolence and even cruelty of British naval officials—the occasional smuggling and evasion of maritime regulations on the part of American mariners, the connivance of some American mercantile firms in the concealment of true ownership of vessels, all called for consular conduct of the utmost civility, restraint, and tact.38 Johnson, however, seemed to regard himself as being in an adversary relationship with officials with whom he had to communicate. This was indeed at times the case, but the unusually burdensome and complicated problems he faced were not made less so by his rather free use of harsh, accusatory, and even threatening language. Further, under a system permitting consuls to engage in trade, disinterested reporting of commercial intelligence affecting the interests of the merchant-consul as well as others in trade presented inevitable conflict. It must be said that Johnson’s dispatches did not adequately meet the duty placed upon him to report commercial intelligence of general concern to his countrymen.

This is strikingly illustrated in the contrast afforded by Jefferson’s early schoolmate and life-long friend, James Maury, American consul at Liverpool. Maury also faced the problems of negligent captains, disputes between them and their crews, violations of customs regulations, and the harassments of Treasury and Admiralty officials, though in a less degree. But he never complained about lack of compensation, made no threats to resign because Congress did not provide it, did not reproach the Secretary of State for the infrequency of his communications and, when the consular bill was finally passed, did not hesitate to comply with the requirement for giving bond. On disputes between masters and crew his invariable approach was to seek an accommodation, feeling unauthorized to take further steps without instructions or statutory warrant.39 Whereas Johnson made it clear that he thought one should not be too scrupulous about abuses of the American flag because this was good for trade, Maury made a particular effort to give effect to Jefferson’s instructions on the point.40 But what distinguished Maury’s dispatches more than anything else from those of his colleague lay in the kind and importance of commercial information they conveyed. At the time when Johnson was defying the Admiralty and providing legal defense in the suit against the master of Greyhound, a matter of far greater importance—passage by Parliament of the Corn Law of 1791—went entirely unnoticed in his dispatches. Jefferson, who was much concerned about the possible effect of this legislation on American farmers and on the relations between the two countries, received his first information of its passage as well as the first copy of its text not from Johnson at the capital, but from the American consul at Liverpool.41 While Johnson omitted detailed commercial intelligence from his dispatches, Maury caused to be printed a tabular form in which he could record and report fluctuations in price and demand of all of the principal articles of American produce. These he sent regularly to Jefferson with his own comments, such as the increase in the price of rice because of rainy weather, the steady market in tobacco despite news of a disastrous crop in America, the scarcity of potash and indigo, the current demand for cotton, the lack of demand for lumber, the advance in turpentine prices, and the stagnation of business due to “the Calamity of the times.”42 None of this kind of information appeared in Johnson’s dispatches, nor did he bother to inform Jefferson of the proclamation prohibiting the export of wheat or give notice of the closing of British ports to the importation of foreign grain. Perhaps, as his dispatches occasionally indicated, Johnson thought the London newspapers he forwarded to the Secretary of State contained sufficient information of public interest. But these did not include the kind of detailed comment about commodity prices and their supply and demand that Maury provided. In brief, Maury’s quite disinterested conduct of the consular office foreshadowed the professional service that was still a generation in the future: Johnson’s revealed some of the disadvantages of having the office filled by a merchant whose private interests could scarcely avoid being at times in conflict with public duty. It is not surprising, therefore, that Jefferson expressed gratitude to the Liverpool consul for conveying intelligence “of considerable importance” or that, on receiving it, he sought to make it available to American farmers and merchants by releasing it on occasion both to Fenno’s Gazette of the United States and to Freneau’s National Gazette.43

When Jefferson notified Johnson of his appointment and told him that “somewhat more” would be expected of him as the only American official located at the capital, he may have implanted the hope that when diplomatic relations were established the consul would be made minister. This would have been a natural expectation and the enthusiasm with which Johnson entered upon his duties gives support to the inference that he entertained it. He began with a flurry of dispatches following one on the other, in the first of which he pointedly remarked that his duties would be heavier than those of all other consuls combined “until a superior appointment takes place”; that, while his rank did not entitle him to personal conferences with the Secretary for Foreign Affairs, discussions with his secretaries indicated “every wish, and inclination, on the part of Government, to support a friendly and good understanding with the United States”; and that George Aust, secretary to the Duke of Leeds, had expressed sanguine hopes of seeing a treaty of alliance or a treaty of commerce negotiated.44 Five months later, despite all of the testimony in the Purdie case which had been so persuasive with Jefferson, Johnson said that he had heard of no American sailors being mistreated; that since his appointment he had met with “every Assurance and Friendly disposition in this Government towards that of the United States”; and that he hoped the impending appointment of a British minister to the United States would “define the rights of the two Countrys, and produce an Amicable liberal and Just understanding.”45 While Johnson’s communications with subordinate officials in the Customs, Admiralty, and Treasury offices at this time rather contradicted the assurances from the Foreign Office which he received with such confidence, his dispatches convey more than a hint that the task of representing the United States in any effort to reach a just understanding would be acceptable. With William S. Smith and William Temple Franklin both in London in the spring of 1791 and both ambitious to be charged with that responsibility, Johnson might justifiably have thought his own claim superior to theirs.46 While conveying repeated indications of the cordial relations he enjoyed with the Foreign Office and the friendly dispositions expressed there, he may indeed have selected the Rachel incident to demonstrate his mode of conducting complicated negotiations. He thought it a “case … singularly hard” and he prosecuted it vigorously before all of the major departments of the British government.

III

Even the essential facts about the Rachel episode are not altogether free of doubt. Johnson referred to it as “a complicated affair,” and so it was.47 But it was not made less so by incomplete, conflicting, and imprecise testimony and especially by Johnson’s failure to address himself, as his instructions required, to the central question as to whether the owner of the vessel had made a convenience of the American flag. When Rachel was detained late in October because she was French-built, William Green, her putative owner, first took the matter up with Treasury officials. Later he reported to Jefferson that the American consul had not intervened at the outset because he had only received news of his appointment and was without instructions at the time of Rachel’s arrival.48 This is incorrect. Johnson’s commission had reached him a week before Rachel arrived, but his instructions, specifically enjoining him to try to prevent all vessels entering as “American … which are not really of the United States,” arrived on Rachel herself.49 The fact that the brigantine was detained by customs officials precisely because she was suspected of being something other than her papers claimed should have alerted the consul to his duty. But during Rachel’s initial detention, Johnson stood silent, though not aloof. He and Green, both merchants, were in full accord in thinking it would be commercially advantageous and therefore justifiable for the United States to adopt European usages by which nations at war covered their navigation under the flags and papers of neutrals. In his first appeal to Jefferson, Green strongly argued for such a policy, urging abandonment of the British and American practice of inserting in a ship’s papers the place where she was built. He may very well have been the sole owner of Rachel and her cargo as he claimed. But, if this were so, one wonders why, after her release, he felt it necessary to urge upon the Secretary of State a policy covering her even if she were owned by an alien, justifying this solely in terms of the wealth that would be derived from it and pointing particularly to Hamburg, “whose Flag is generally attended to as much upon the Ocean as if she had Twenty Sail of Line of Battle Ships to protect it from Injury and Insult.”50 It was just a month after this plea that Johnson, acknowledging the specific obligation imposed by his instructions and admitting the frequency of the abuse, dared to suggest that the policy of the government he represented should not be enforced too scrupulously.51 The argument of the owner of Rachel, though based upon a narrow conception of the national interest, is understandable. But the same argument, coming from the consul, was in conflict with official instructions.

Rachel arrived at London while preparations for war were still in progress. Treasury officials, rarely prompt, gave no response to Green’s appeal for two months and then, immediately after news of the Convention with Spain arrived, denied entry. Possibly they suspected that the real owner of the brigantine was a British subject, concealing the fact in order to avoid the disadvantage of the tonnage act of 1789, which favored American citizens. The ministry had long since warned against such discrimination and British consuls had reported the resultant concealments of ownership to avoid its effects.52 Whatever the reason for denial of entry, Rachel remained in port for another month after her release. Green at first stated that this was due to the “oppressive circumstances” in which Captain Duff had been placed by the customs officials. Later he said that Duffs only offense had been to land the fowling piece brought by William Knox, thereby failing to point out that there had also been an altercation and the captain had ejected from his cabin the tidewaiter who initiated the prosecution.53 Neither Green nor Johnson nor Duff explained why the captain should have been brought into court over an article found in the baggage of Knox or why that consul was not involved in the suit. But all stated that Rachel had been detained three months after her arrival, which is contrary to fact. Rachel had remained in port for a month after she was refused entry, according to their testimony, so that Duff could give bail, but she was not then under seizure. A more plausible explanation is that Jacob Wilkinson, the consignee, was awaiting word from Ostend before giving orders for her to proceed. Both Green and Duff, however, made liberal estimates of the loss to the owner because of the additional month’s “detention.”54 Similar conflicts in the testimony occur in the more complicated circumstances of Rachel’s return from Ostend in February, when Johnson promptly and vigorously took up her cause.

William Green informed Jefferson that Johnson did not intervene until the “pressing necessity of National Circumstance compelled him.”55 He did not explain the nature of the compulsion and, not surprisingly, there were conflicting accounts of the circumstances which produced his intervention. All of the testimony makes it clear that, on her outward voyage from Ostend, Rachel came to anchor off Spithead on the 21st of February. Captain Duff informed Johnson that her voyage to New York had been interrupted by permission of the consignee because it was “absolutely necessary” for him to discover the fate of the suit against himself. The customs officers at Portsmouth quoted Duff as saying he had come into port “to await orders.” Perhaps so, but there can be no doubt that the captain did submit to the Commissioners of the Customs a memorial which reached that body on the 24th. This appeal was certainly made with Johnson’s knowledge and very likely with his assistance. Duff’s request to compromise the matter was granted the very same day. Green must have advanced the amount of court costs and compensation to the tidewaiter who brought suit, since he later asked indemnification. The transaction had been concluded swiftly and Captain Duff learned of the result on the 25th.

But, unfortunately, he had not reported to the customs officials immediately on arrival. He explained that his delay was due to foul weather, though this had not prevented the revenue officers from coming on board on the 22d. Nor had it kept Duff from getting off his memorial to the Commissioners of Customs on the same day. He also gave conflicting testimony about the date he had reported to the Portsmouth customs officials. At first he stated that this was done on the 24th, a date corroborated by the officials. Later, under Johnson’s directions to verify the date precisely, he altered this to the 23rd. This, unfortunately, confused the matter still further and made even more difficult Johnson’s effort to prove that the report of the Commissioners of Customs had deviated from the truth in essential points. Johnson tried to reconcile the contradiction, but could only argue that the report had mistakenly given Thursday instead of Tuesday as the day when Duff announced Rachel’s arrival. Tuesday fell on the 22d, a date that the captain had not mentioned in either of his contradictory statements. Worse, this would have weakened Johnson’s argument still further by proving that the delay had not in fact occurred.

But the important point, which not even Duff denied, is that he had failed to report at once as required by law. Later, when he did submit Rachel’s register and manifest, the customs officers at Portsmouth, perhaps already annoyed at his ignoring the maritime requirement, found that Rachel had on board brandy and gin in amounts not permitted by regulations. They seized her on the 2d of March and Captain Duff set out for London that night. The next day he gave a written report to Johnson, who immediately intervened and demanded not only that the Commissioners of Customs release the brigantine, but that compensation be made for her detention. Three weeks later the Commissioners gave orders for Rachel’s release, subject to prosecution of the spirits in small quantities and satisfaction being made to the seizing officer. On receiving this information, Johnson appealed the next day not to the Lords of the Treasury but to the Secretary for Foreign Affairs, again requesting the vessel’s release as well as full and ample compensation.56 On the day of its receipt his memorial was referred by the Foreign Office to the Treasury and by that department to the Commissioners of Customs. Johnson viewed this as making the accused both judge and jury and again protested to the Duke of Leeds, more vigorously—and also inaccurately.57 The reference to the Commissioners of the Customs was of course for report and recommendation. Not surprisingly, the Commissioners’ report was at variance with the statements of Johnson and Duff. It recommended that, since Rachel and her captain had received all reasonable indulgence, they should be given no further relief.58

The issue might then have been closed. Rachel had been detained only three weeks in her second clash with authority and was free to proceed as soon as the necessary condition had been met. On another occasion Johnson himself stated that compensation to seizing officers was customary and, if it were deemed unreasonable, appeal could be made to the Treasury.59 In the case of Rachel, however, his appeal directly to the Secretary for Foreign Affairs resulted in a delay of several weeks before he learned that it was fruitless. Meanwhile Rachel was losing money for her owner, had suffered damage at the hands of the officials, and the spirits in small packages had been “pillaged” in Johnson’s view—prosecuted in that of the officials. But now Johnson turned upon the Commissioners of Customs, charged that their report did violence to the truth, professed not to understand what was meant by “Satisfaction to the Seizing Officers,” and announced that he would report the transaction “to the Congress of the United States” and send copies of his view of the facts to the Duke of Leeds and to the Lords of the Treasury.60 Without waiting for an answer from the Commissioners he sought to obtain one from the customs officers at Portsmouth, demanding that it be put in writing. When the officers reported that £60 would suffice, Johnson asked the Commissioners of Customs for a speedy answer as to whether Rachel could proceed on her voyage on payment of that amount. He did not submit the officers’ letter to the Commissioners, presumably because it quoted Duff as saying he considered it a “very reasonable” sum. Nor did he send either to the Commissioners or to Jefferson the letter of Captain Duff concerning their reply which he sent by the same post.61 Nothing had been gained by this rather circulatory mode of negotiation except delay and increased irritation on the part of all concerned. Far from husbanding the good disposition of government for important occasions as Jefferson had counselled, Johnson had made prodigal levies upon it in a case of questionable merit.

But this was by no means the end. On the 27th of April, just a month after the Commissioners of the Customs had ordered the release of Rachel, her boatswain and four members of the crew deserted and enlisted in the British navy, claiming to be subjects of the Crown despite the fact that they had signed on in New York as American citizens. This was not an unusual occurrence, considering the higher wages offered seamen by the Admiralty. Johnson himself had long since called Jefferson’s attention to the problem.62 But when the deserters sought to recover their wages and personal possessions that had been left on board, Rachel faced arrest and Johnson sprang to her defense. Already engaged in confrontation with the Foreign Office, Treasury, and Customs on her account, he now took on the Lords of the Admiralty. It was his policy, he confided to James Maury but not to the Secretary of State, to forbid captains of American vessels to pay the wages or deliver the clothes of seamen who deserted or entered the royal navy. “The American Captain in refusing to deliver the American Sailors cloaths, or pay his wages,” he wrote to Maury about another case of the sort, “did perfectly right. In every instance I have forbid their doing either, and in many even not to pay the Wages of British Seamen, prest out of American ships. The first point I am clear in, and Government has given it up; on the second I took Sir William Scott’s opinion and which is rather against me, tho in one instance the Admiralty has arrested a Ship at Portsmouth and that more than a month ago, threatening that they would sell her to pay the Mens wages in six days unless satisfied. I wrote the Admiralty to do as they pleased, that nothing should be paid, that I should protest and transmit the same to Congress, and take their instructions; they have done nothing, and if we were to act firmly, I dont believe they dare.”63 The vessel in question was Rachel and the Lords of the Admiralty had indeed dared to arrest her when the five seamen brought suit in the High Court of Admiralty. Johnson, in the most imperious language he had thus far employed, declared that the seamen were Americans, that they had violated their contract, and that by deserting they had forfeited their claim to wages. He demanded that the Admiralty give “instant, and effectual Orders to put an immediate stop to the perpetration of so insolent an Outrage.”64 The response was prompt, arriving just in time for Johnson to send it to the Secretary of State with other documents on the case of Rachel. It was also conclusive: all that was necessary for her release was for the owner or master of the vessel to settle the claims or let the High Court of Admiralty decide.65

Johnson, of course, had no more authority to forbid the master of Rachel—or any other vessel—to refuse payment than he had to compel American captains to report their entry and clearance. Presumably he was able to persuade Green that the Admiralty would not make good its warning that Rachel would be condemned and sold if the claims were not met. Certainly Johnson’s confidence was not shaken. Simultaneously and in language as blunt as that he had used with the Admiralty, he repeated his earlier protests to the Treasury and to the Secretary for Foreign Affairs, now Lord Grenville. In the first of these communications he reiterated his demand that compensation be made for Rachel’s earlier detention and—again assuming authority which he did not possess—declared that he could not consent to the condition imposed for her release, characterizing it as “an arbitrary fine.” In that to Grenville he asserted that his earlier memorial to Leeds complaining of a gross outrage had been referred for ultimate decision to those who had perpetrated it. This was not a very precise statement of what had occurred, but in both letters he announced his intention to transmit a report “to the Congress of the United States” by the June packet.66 A month after Rachel’s arrest on the sailors’ suit, Johnson still hoped for success. Late in June, repeating an earlier question, he asked George Aust “to inform him by the bearer whether Lord Grenville means to honor Mr. Johnson with any answer to his letter … or not.” Grenville did not answer, but a week later Aust informed Johnson that the Commissioners of the Treasury had confirmed their former report and remained of the opinion that no further relief should be granted. On the 21st of July came the warning that, unless the seamen were paid, Rachel would be condemned and sold. Three days later Green prudently gave up the contest and agreed to the stipulations. He also compensated the customs officers who had seized her on the 2d of March.67 Had that condition been met at the time, the brigantine could have departed a month before the seamen deserted. Johnson’s strategy of confrontation, with Green’s acquiescence, had failed on every count.

The optimistic hopes of Rachel’s owner went even further beyond the bounds of reality. Before the year was out, Green submitted to Jefferson what he described as a sequel to Johnson’s report, representing himself as having resisted “a Public Wrong and Indignity to the Independance of the United States.” For this public service he hoped the federal government would have the humanity and wisdom to indemnify him for the losses he had sustained. His estimate of damages was liberal, amounting to $7,292 or almost two-thirds of the insured value of the vessel and her cargo. His treatment of the facts was equally loose. Jefferson would have had no difficulty in perceiving that, on the basis of Green’s own reckoning, Rachel had not been detained by British authorities “for the Space of Nine Months.”68 Looking over the elaborate documentation of the case as reported by Johnson, he could have seen at once that the total period of detention amounted to no more than six months, and might have been reduced to half that period had the customary compensation been made when Rachel was ordered to be released late in March. Most of her time spent in idleness resulted from the vigorous insistence of the American consul who, in Green’s words, intervened when “the pressing necessity of National Circumstance compelled him.”

If Johnson had known the Secretary of State well or if he had read his instructions carefully, he might have guessed that the outcome was predictable. Jefferson acknowledged Johnson’s dispatch, but made no direct comment then or ever on the merit of Rachel’s case. But his allusion in the same letter to the consul’s abandonment of the case of Purdie may very well have been intended to apply equally to his espousal of Rachel: “We would chuse never to commit ourselves but when we are so clearly in the right as to admit no doubt.”69 Quite understandably, Jefferson did not even acknowledge Green’s hopeless appeal for indemnification. Later, after Thomas Pinckney’s appointment as minister to England, Green appealed in person to the Secretary of State for assistance in recovering the much larger losses he claimed he had sustained in trade with the East Indies. Before Pinckney departed, Jefferson had frequent discussions with him about Green’s application and reached an understanding as to the position the government should take. “The magnitude of his losses,” Jefferson later wrote to the minister, “will call for all the attentions and patronage we can give him consistently with those considerations of ultimate friendship and peace between the two nations which higher duties oblige us to cultivate.” Jefferson left it up to Pinckney to decide when the case would justify official interposition.70 All of this was set forth in a letter of introduction for Green to present to Pinckney, left unsealed for his inspection. Thus signalling the doubts that Jefferson entertained, it should have warned the merchant of the undisclosed grounds on which the Secretary of State and the minister to England had conditioned the possibility of official intervention.

These higher duties of ultimate peace and friendship, unfortunately, were such as Johnson lost sight of when striving most assiduously to meet them. That he should have chosen to document so fully such a dubious case as that of Rachel seems explicable only on the ground that he hoped to prove his qualifications for the rank of minister. At this juncture he knew that diplomatic relations between the two countries were about to be resumed. He was also aware that his situation required him to go somewhat beyond the normal consular functions. Indeed, in his later appeal to Congress to reimburse and compensate him for his services, he stressed the fact that in the absence of an American minister, he was obliged to act in a diplomatic capacity and to entertain “almost every American of respectability whose business or whose pleasure brought him to London.”71 He was conscious of the powerful political thrust of Jefferson’s report on the fisheries and thought that the navigation act which had been referred to the Secretary of State would be enacted at the ensuing Congress.72 It was therefore perhaps not accidental that, in submitting Rachel’s case as proof of hostility on the part of the British government, he expressed the opinion that no response could be so effectual “as a retaliating Navigation Act.”73 As he must have realized, this placed him squarely in accord with the announced policy of the Secretary of State. But, if he were seeking ministerial appointment, the methods of conducting diplomatic discourse which he so elaborately revealed in the record of Rachel proved him to be his own worst advocate. It is not in this but in Jefferson’s silence on the case that the importance of the episode lies, suggesting as it does the means by which he chose to attain great objects of policy. Jefferson was prepared to use the countervailing strategy of a navigation act because, as he pointed out to Sir John Sinclair, the failure to achieve amicable commercial relations between the United States and Great Britain could not be imputed to the former.74 He was not prepared to jeopardize the ultimate goal of friendship and peace, most especially if this meant standing on so fragile a foundation as that revealed in the too amply documented case of Rachel. Civility, not harshness or belligerency, was his most characteristic trait in endeavoring to reach just and reasonable accommodations of interest among men and nations.

Within a year Jefferson’s insistent warnings against abuses of the American flag became national policy upon passage by Congress of the Registry Act of 1792. This unprecedented legislation made ownership of vessels entirely by American citizens an indispensable requirement of registration. It prohibited sale to aliens of any interest in a vessel bearing the flag of the United States, under penalty of loss of registry and, in the event of proven fraudulence, forfeiture of both vessel and cargo. It provided that, upon sale or transfer of title of a vessel so registered, her certificate of registration should immediately be surrendered to the authorities. The Enrollment and Licensing Act of 1793 established even more stringent provisions to prevent abuse of the American flag.75 Such legislation, designed to insure that vessels registered under authority of the United States should adhere strictly to its policy of neutrality, was difficult if not impossible to enforce. Much litigation resulted, and no doubt many more fraudulent practices went undiscovered. But the principle which Jefferson consistently upheld long before it became embodied in national law had been vindicated.