The Life of John Marshall Volume II Part 34

From the same source Pinckney is warned: "You must not appear to suspect what you may really know; ... you must ... save him [Gerry] and, in doing so, prevent the Division that would grow out of a Schism in your Commission." Gerry will be all right, thinks King, "unless Pride shall be put in opposition to Duty, or Jealousy shall mislead a mind neither ingenuous nor well organized, but habitually suspicious, and, when a.s.sailed by personal vanity, inflexible."[669]

Pinckney informs King of the situation in Paris on December 27, declaring "that we ought to request our Pa.s.sports and no longer exhibit to the World the unprecedented Spectacle of three Envoys Extraordinary from a free and independent nation, in vain soliciting to be heard."[670]

Marshall now insists that the American case be formally stated to the French Government. Gerry at last agrees.[671] Marshall, of course, prepares this vastly important state paper. For two weeks he works over the first half of this historic doc.u.ment. "At my request Genl. Pinckney & Mr. Gerry met in my room & I read to them the first part of a letter to the Minister of Exterior Relations which consisted of a justification of the American Government,"[672] he relates in his Journal.

Over the last half of the American case, Marshall spends seven days.

"The Second part of the letter to the Minister of Exterior Relations, comprehending the claims of the United States upon France, being also prepared, I read it to Genl Pinckney & Mr. Gerry." Both sections of Marshall's letter to Talleyrand were submitted to his colleagues for suggestions.[673]

It was hard work to get Gerry to examine and sign the memorial. "I had so repeatedly pressed Mr. Gerry," notes Marshall, "on the subject of our letter prepared for the Minister of Exterior Relations & manifested such solicitude for its being so completed as to enable us to send it, that I had obviously offended. Today I have urged that subject and for the last time."[674] Two days later Marshall chronicles that "Mr. Gerry finished the examination of our letter to the Minister of Exterior Relations."[675] A week later the letter, translated and signed, is delivered to Talleyrand.[676]

Upon this memorial were based future and successful American negotiations,[677] and the statement by Marshall remains to this day one of the ablest state papers ever produced by American diplomacy.

Marshall reminds Talleyrand of the frequent and open expressions of America's regard for France, given "with all the ardor and sincerity of youth." These, he says, were considered in America "as evidencing a mutual friends.h.i.+p, to be as durable as the republics themselves."

Unhappily the scene changed, says Marshall, and "America looks around in vain for the ally or the friend." He pictures the contrast in the language and conduct of the French Government with what had pa.s.sed before, and says that the French charge of American partiality toward Great Britain is unfounded.

Marshall then reviews the international situation and makes it so plain that America could not take part in the European wars, that even Talleyrand was never able to answer the argument. "When that war [began]

which has been waged with such unparalleled fury," he writes, "which in its vast vicissitudes of fortune has alternately threatened the very existence of the conflicting parties, but which, in its progress, has surrounded France with splendor, and added still more to her glory than to her territory," America found herself at peace with all the belligerent Powers; she was connected with some of them by treaties of amity and commerce, and with France by a treaty of alliance.

But these treaties, Marshall points out, did not require America to take part in this war. "Being bound by no duty to enter into the war, the Government of the United States conceived itself bound by duties, the most sacred, to abstain from it." Upon the ground that man, even in different degrees of social development, is still the natural friend of man, "the state of peace, though unstipulated by treaty," was the only course America could take. "The laws of nature" enjoined this, Marshall announces; and in some cases "solemn and existing engagements ...

require a religious observance" of it.[678]

Such was the moral ground upon which Marshall built his argument, and he strengthened it by practical considerations. "The great nations of Europe," he writes, "either impelled by ambition or by existing or supposed political interests, peculiar to themselves, have consumed more than a third of the present century in wars." The causes that produced this state of things "cannot be supposed to have been entirely extinguished, and humanity can scarcely indulge the hope that the temper or condition of man is so altered as to exempt the next century from the ills of the past. Strong fortifications, powerful navies, immense armies, the acc.u.mulated wealth of ages, and a full population, enable the nations of Europe to support those wars."[679]

Problems of this character, Marshall explains, must be solved by European countries, not by the United States. For, "encircled by no dangerous Powers, they [the Americans] neither fear, nor are jealous of their neighbors," says Marshall, "and are not, on that account, obliged to arm for their own safety." He declares that America, separated from Europe "by a vast and friendly ocean," has "no motive for a voluntary war," but "the most powerful reasons to avoid it."[680]

America's great and undefended commerce, made necessary by her then economic conditions, would be, Marshall contends, the "immediate and certain victim" of engaging in European wars; and he then demonstrates the disastrous results to America of departing from her policy of Neutrality.

The immense and varied resources of the United States can only be used for self-defense, reasons the Virginia lawyer. "Neither the genius of the nation, nor the state of its own finances admit of calling its citizens from the plough but to defend their own liberty and their own firesides."

He then points out that, in addition to the moral wrong and material disaster of America's taking part in France's wars, such a course means the launching into the almost boundless ocean of European politics. It implies "contracting habits of national conduct and forming close political connections which must have compromitted the future peace of the nation, and have involved it in all the future quarrels of Europe."

Marshall then describes the "long train of armies, debts, and taxes, checking the growth, diminis.h.i.+ng happiness, and perhaps endangering the liberty of the United States, which must have followed." And all this for what? Not to fulfill America's treaties; "not to promote her own views, her own objects, her own happiness, her own safety; but to move as a satellite around some other greater planet, whose laws she must of necessity obey."[681]

"It was believed," he declares, "that France would derive more benefit from the Neutrality of America than from her becoming a party in the war." Neutrality determined upon, he insists that "increased motives of honor and of duty commanded its faithful observance.... A fraudulent neutrality is no neutrality at all.... A ... nation which would be admitted to its privileges, should also perform the duties it enjoins."

If the American Government, occupying a neutral position, had granted "favors unstipulated by treaty, to one of the belligerent Powers which it refused to another, it could no longer have claimed the immunities of a situation of which the obligations were forgotten; it would have become a party to the war as certainly as if war had been openly and formally declared, and it would have added to the madness of wantonly engaging in such a hazardous conflict, the dishonor of insincere and fraudulent conduct; it would have attained, circuitously, an object which it could not plainly avow or directly pursue, and would have tricked the people of the United States into a war which it would not venture openly to declare."

Then follows this keen thrust which Talleyrand could not evade: "It was a matter of real delight to the government and people of America,"

suavely writes Marshall, "to be informed that France did not wish to interrupt the peace they [the American people] enjoyed."

Marshall then makes a sudden and sharp attack memorable in the records of diplomatic dueling. He calls attention to the astounding conduct of the French Minister on American soil immediately after the American Government had proclaimed its Neutrality to the world and had notified American citizens of the duties which that Neutrality enjoined. In polite phrase he reminds Talleyrand of Genet's a.s.sumption of "the functions of the government to which he was deputed, ... although he was not even acknowledged as a minister or had reached the authority which should inspect his credentials."

But, notwithstanding this, says Marshall, "the American Government resolved to see in him [Genet] only the representative of a republic to which it was sincerely attached" and "gave him the same warm and cordial reception which he had experienced from its citizens without a single exception from Charleston to Philadelphia."

Two paragraphs follow of fulsome praise of France, which would seem to have been written by Gerry, who insisted on revising the memorial.[682]

But in swift contrast Marshall again throws on the screen the indefensible performances of the French Minister in America and the tolerance with which the American Government treated them. "In what manner would France have treated any foreign minister, who should have dared to so conduct himself toward this republic?... In what manner would the American Government have treated him [Genet] had he been the representative of any other nation than France?"

No informed man can doubt the answer to these questions, says Marshall.

"From the Minister of France alone could this extraordinary conduct be borne with temper." But "to have continued to bear it without perceiving its extreme impropriety would have been to have merited the contempt" of the world and of France herself. "The Government of the United States did feel it," declares Marshall, but did not attribute Genet's misconduct to the French Nation. On the contrary, the American Government "distinguished strongly between the [French] Government and its Minister," and complained "in the language of a friend afflicted but not irritated." Genet's recall "was received with universal joy" in America, "as a confirmation that his ... conduct was attributable only to himself"; and "not even the publication of his private instructions could persuade the American Government to ascribe any part of it to this [French] republic."[683]

Marshall further points out "the exertions of the United States to pay up the arrearages" of their debt to France; America's "disinterested and liberal advances to the sufferers of St. Domingo ... whose recommendation was that they were Frenchmen and unfortunate"; and other acts of good-will of the American Government toward the French Republic.

He then makes a characteristically clear and convincing argument upon the points at issue between France and America. France complained that one article of the Jay Treaty provided that in case of war the property of an enemy might be taken by either out of the s.h.i.+ps of the other; whereas, by the Treaty of 1778 between France and America, neither party should take out of the vessels of the other the goods of its enemy.

France contended that this was a discrimination against her in favor of Great Britain. Marshall shows that this provision in the Jay Treaty was merely the statement of the existing law of nations, and that therefore the Jay Treaty gave no new rights to Great Britain.

Marshall reminds Talleyrand that any two nations by treaty have the power to alter, as to their mutual intercourse, the usages prescribed by international law; that, accordingly, France and America had so changed, as between themselves, the law of nations respecting enemy's goods in neutral bottoms. He cites the ordinance of France herself in 1744 and her long continued practice under it; and he answers so overwhelmingly the suggestion that the law of nations had not been changed by the rules laid down by the "Armed Neutrality" of the Northern Powers of Europe in the war existing at the time of that confederation, that the resourceful Talleyrand made no pretense of answering it.

The stipulation in the Franco-American Treaty of "protecting the goods of the enemy of either party in the vessels of the other, and in turn surrendering its own goods found in the vessels of the enemy," extended, Marshall insists, to no other nation except to France and America; and contends that this could be changed only by further specific agreements between those two nations.

Marshall wishes "that the principle that neutral bottoms shall make neutral goods" were universally established, and declares that that principle "is perhaps felt by no nation on earth more strongly than by the United States." On this point he is emphatic, and reiterates that "no nation is more deeply interested in its establishment" than America.

"It is an object they [the United States] have kept in view, and which, if not forced by violence to abandon it, they will pursue in such manner as their own judgment may dictate as being best calculated to attain it."

"But," he says, "the wish to establish a principle is essentially different from a determination that it is already established....

However solicitous America might be to pursue all proper means, tending to obtain for this principle the a.s.sent of any or all of the maritime Powers of Europe, she never conceived the idea of attaining that consent by force."[684] "The United States will only arm to defend their own rights," declares Marshall; "neither their policy nor their interests permit them to arm, in order to compel a surrender of the rights of others."

He then gives the history of the Jay Treaty, and points out that Jay's particular instructions not to preserve peace with Great Britain, "nor to receive compensations for injuries sustained, nor security against their future commission, at the expense of the smallest of its [America's] engagements to France,"[685] were incorporated in the treaty itself, in the clause providing that "nothing in this treaty shall, however, be construed or operate contrary to former and existing public treaties with other sovereignties or states."[686] So careful, in fact, was America to meet the views of France that "previous to its ratification" the treaty was submitted to the French Minister to the United States, who did not even comment on the article relating to enemy's goods in neutral bottoms, but objected only to that enlarging the list of contraband;[687] and the American Government went to extreme lengths to meet the views of the French Minister, who finally appeared to be satisfied.

The articles of contraband enumerated in the Jay Treaty, to which the French Government objected, says Marshall, were contraband by the laws of nations and so admitted by France herself in her treaties with other countries.[688]

Answering the charge that in the treaty the United States had agreed that more articles should be contraband than she had in compacts with other Powers, Marshall explains that "the United States, desirous of liberating commerce, have invariably seized every opportunity which presented itself to diminish or remove the shackles imposed on that of neutrals. In pursuance of this policy, they have on no occasion hesitated to reduce the list of contraband, as between themselves and any nation consenting to such reduction. Their preexisting treaties have been with nations as willing as themselves to change this old rule." But these treaties leave other governments, who do not accept the American policy, "to the law which would have governed had such particular stipulation never been made"--that is, to the law of nations.

Great Britain declined to accept this American view of the freedom of the seas; and, therefore, America was forced to leave that nation where it had found her on the subject of contraband and freedom of ocean-going commerce. Thus, contends Marshall, the Jay Treaty "has not added to the catalog of contraband a single article ... ceded no privilege ...

granted no right," nor changed, in the most minute circ.u.mstance, the preexisting situation of the United States in relation either to France or to Great Britain. Notwithstanding these truths, "the Government of the United States has hastened to a.s.sure its former friend [France], that, if the stipulations between them are found oppressive in practice, it is ready to offer up those stipulations a willing sacrifice at the shrine of friends.h.i.+p."[689]

Stating the general purposes of the United States, Marshall strikes at the efforts of France to compel America to do what France wishes and in the manner that France wishes, instead of doing what American interests require and in the manner America thinks wisest.

The American people, he a.s.serts, "must judge exclusively for themselves how far they will or ought to go in their efforts to acquire new rights or establish new principles. When they surrender this privilege, they cease to be independent, and they will no longer deserve to be free.

They will have surrendered into other hands the most sacred of deposits--the right of self-government; and instead of approbation, they will merit the contempt of the world."[690]

Marshall states the economic and business reasons why the United States, of all countries, must depend upon commerce and the consequent necessity for the Jay Treaty. He tartly informs Talleyrand that in doing so the American Government was "transacting a business exclusively its own."

Marshall denies the insinuation that the negotiations of the Jay Treaty had been unusually secret, but sarcastically observes that "it is not usual for nations about to enter into negotiations to proclaim to others the various objects to which those negotiations may possibly be directed. Such is not, nor has it ever been, the principle of France."

To suppose that America owed such a duty to France, "is to imply a dependence to which no Government ought willingly to submit."[691]

Marshall then sets forth specifically the American complaints against the French Government,[692] and puts in parallel columns the words of the Jay Treaty to which the French objected, and the rules which the French Directory pretended were justified by that treaty. So strong is Marshall's summing up of the case in these portions of the American memorial that it is hard for the present-day reader to see how even the French Directory of that lawless time could have dared to attempt to withstand it, much less to refuse further negotiations.

Drawing to a conclusion, Marshall permits a lofty sarcasm to lighten his weighty argument. "America has accustomed herself," he observes, "to perceive in France only the ally and the friend. Consulting the feelings of her own bosom, she [America] has believed that between republics an elevated and refined friends.h.i.+p could exist, and that free nations were capable of maintaining for each other a real and permanent affection. If this pleasing theory, erected with so much care, and viewed with so much delight, has been impaired by experience, yet the hope continues to be cherished that this circ.u.mstance does not necessarily involve the opposite extreme."[693]

Then, for a moment, Marshall indulges his eloquence: "So intertwined with every ligament of her heart have been the cords of affection which bound her to France, that only repeated and continued acts of hostility can tear them asunder."[694]

Finally he tells Talleyrand that the American envoys, "searching only for the means of effecting the objects of their mission, have permitted no personal considerations to influence their conduct, but have waited, under circ.u.mstances beyond measure embarra.s.sing and unpleasant, with that respect which the American Government has so uniformly paid to that of France, for permission to lay before you, citizen Minister, these important communications with which they have been charged." But, "if no such hope" remains, "they [the envoys] have only to pray that their return to their own country may be facilitated."[695]

But Marshall's extraordinary power of statement and logic availed nothing with Talleyrand and the Directory. "I consider Marshall, whom I have heard speak on a great subject,[696] as one of the most powerful reasoners I ever met with either in public or in print," writes William Vans Murray from The Hague, commenting on the task of the envoys.

"Reasoning in such cases will have a fine effect in America, but to depend upon it in Europe is really to place Quixote with Gines de Pa.s.samonte and among the men of the world whom he reasoned with, and so sublimely, on their way to the galleys. They answer him, with you know stones and blows, though the Knight is an _armed_ as well as an eloquent Knight."[697]

The events which had made Marshall and Pinckney more resolute in demanding respectful treatment had made Gerry more pliant to French influence. "Mr. Gerry is to see Mr. Talleyrand the day after to-morrow.

Three appointments have been made by that gentleman," Marshall notes in his Journal, "each of which Mr. Gerry has attended and each of which Mr.

Talleyrand has failed to attend; nor has any apology for these disappointments been thought necessary."[698] Once more Gerry waits on Talleyrand, who remains invisible.[699] And now again Beaumarchais appears. The Directory issues more and harsher decrees against American commerce. Marshall's patience becomes finite. "I prepared to-day a letter to the Minister remonstrating against the decree, ... subjecting to confiscation all neutral vessels having on board any article coming out of England or its possessions." The letter closes by "requesting our pa.s.sports."[700]