The Life of John Marshall
Chapter 114 : Marshall urges this point with great vigor, and concludes that, if a gross amount can

Marshall urges this point with great vigor, and concludes that, if a gross amount can be agreed upon, the American Minister must see to it, of course, that this sum is made as small as possible, not "to exceed one million sterling" in any event.[1159] In a private letter, Marshall informs King that "the best opinion here is that not more than two million Dollars could justly be chargeable to the United States under the treaty."[1160]

Adams was elated by Marshall's letter. "I know not," he wrote, "how the subject could have been better digested."[1161]

Almost from the exchange of ratifications of the Jay compact, impressment of American seamen by the British and their taking from American s.h.i.+ps, as contraband, merchandise which, under the treaty, was exempt from seizure, had injured American commerce and increasingly irritated the American people.[1162] The brutality with which the British practiced these depredations had heated still more American resentment, already greatly inflamed.[1163]

In June, 1799, Marshall's predecessor had instructed King "to persevere ... in denying the right of British Men of War to take from our s.h.i.+ps of War any men whatever, and from our merchant vessels any Americans, or foreigners, or even Englishmen."[1164] But the British had disregarded the American Minister's protests and these had now been entirely silenced by the break-up of the British Debts Commissions.

Nevertheless, Marshall directed our Minister at the Court of St. James to renew the negotiations. In a state paper which, in ability, dignity, and eloquence, suggests his famous Jonathan Robins speech and equals his memorial to Talleyrand, he examines the vital subjects of impressment, contraband, and the rights of neutral commerce.

It was a difficult situation that confronted the American Secretary of State. He had to meet and if possible modify the offensive, determined, and wholly unjust British position by a statement of principles based on fundamental right; and by an a.s.sertion of America's just place in the world.

The spirit of Marshall's protest to the British Government is that America is an independent nation, a separate and distinct political ent.i.ty, with equal rights, power, and dignity with all other nations[1165]--a conception then in its weak infancy even in America and, apparently, not entertained by Great Britain or France. These Powers seemed to regard America, not as a sovereign nation, but as a sort of subordinate state, to be used as they saw fit for their plans and purposes.

But, a.s.serts Marshall, "the United States do not hold themselves in any degree responsible to France or to Britain for their negotiations with the one or the other of these Powers, but are ready to make amicable and reasonable explanations with either.... An exact neutrality ... between the belligerent Powers" is the "object of the American Government....

Separated far from Europe, we mean not to mingle in their quarrels....

We have avoided and we shall continue to avoid any ... connections not compatible with the neutrality we profess.... The aggressions, sometimes of one and sometimes of another belligerent power have forced us to contemplate and prepare for war as a probable event.... But this is a situation of necessity, not of choice." France had compelled us to resort to force against her, but in doing so "our preference for peace was manifest"; and now that France makes friendly advances, "America meets those overtures, and, in doing so, only adheres to her pacific system."

Marshall lays down those principles of international conduct which have become the traditional American policy. Reviewing our course during the war between France and Great Britain, he says: "When the combination against France was most formidable, when, if ever, it was dangerous to acknowledge her new Government" and maintain friendly relations with the new Republic, "the American Government openly declared its determination to adhere to that state of impartial neutrality which it has ever since sought to maintain; nor did the clouds which, for a time, lowered over the fortunes of the [French] Republic, in any degree shake this resolution. When victory changed sides and France, in turn, threatened those who did not arrange themselves under her banners, America, pursuing with undeviating step the same steady course," nevertheless made a treaty with Great Britain; "nor could either threats or artifices prevent its ratification."

"At no period of the war," Marshall reminds the British Government, "has France occupied such elevated ground as at the very point of time when America armed to resist her: triumphant and victorious everywhere, she had dictated a peace to her enemies on the continent and had refused one to Britain." On the other hand, "in the reverse of her fortune, when defeated both in Italy and on the Rhine, in danger of losing Holland, before the victory of Ma.s.sena had changed the face of the last campaign, and before Russia had receded from the coalition against her, the present negotiation [between America and France] was resolved on. During this pendency," says Marshall, "the state of the war has changed, but the conduct of the United States" has not.

"Our terms remain the same: we still pursue peace. We still embrace it, if it can be obtained without violating our national honor or our national faith; but we will reject without hesitation all propositions which may compromit the one or the other."

All this, he declares, "shows how steadily it [the American Government]

pursues its system [Neutrality and peace] without regarding the dangers from the one side or the other, to which the pursuit may be exposed. The present negotiation with France is a part of this system, and ought, therefore, to excite in Great Britain no feelings unfriendly to the United States."

Marshall then takes up the British position as to contraband of war. He declares that even under the law of nations, "neutrals have a right to carry on their usual commerce; belligerents have a right to prevent them from supplying the enemy with instruments of war." But the eighteenth article of the treaty itself covered the matter in express terms, and specifically enumerated certain things as contraband and also "generally whatever may serve _directly_ to the equipment of vessels." Yet Great Britain had ruthlessly seized and condemned American vessels regardless of the treaty--had actually plundered American s.h.i.+ps of farming material upon the pretense that these articles might, by some remote possibility, be used "to equip vessels." The British contention erased the word "_directly_"[1166] from the express terms of the treaty. "This construction we deem alike unfriendly and unjust," he says. Such "garbling a compact ... is to subst.i.tute another agreement for that of the parties...."

"It would swell the list of contraband to" suit British convenience, contrary to "the laws and usages of nations.... It would prohibit ...

articles ... necessary for the ordinary occupations of men in peace" and require "a surrender, on the part of the United States, of rights in themselves unquestionable, and the exercise of which is essential to themselves.... A construction so absurd and so odious ought to be rejected."[1167]

Articles, "even if contraband," should not be confiscated, insists Marshall, except when "they are attempted to be carried to an enemy."

For instance, "vessels bound to New Orleans and laden with cargoes proper for the ordinary use of the citizens of the United States who inhabit the Mississippi and its waters ... cannot be justly said to carry those cargoes to an enemy.... Such a cargo is not a just object of confiscation, although a part of it should also be deemed proper for the equipment of vessels, because it is not attempted to be carried to an enemy."

On the subject of blockade, Marshall questions whether "the right to confiscate vessels bound to a blockaded port ... can be applied to a place not completely invested by land as well as by sea." But waiving "this departure from principle," the American complaint "is that ports not effectually blockaded by a force capable of completely investing them, have yet been declared in a state of blockage, and vessels attempting to enter therein have been seized, and, on that account, confiscated." This "vexation ... may be carried, if not resisted, to a very injurious extent."

If neutrals submit to it, "then every port of the belligerent powers may at all times be declared in that [blockaded] state and the commerce of neutrals be thereby subjected to universal capture." But if complete blockage be required, then "the capacity to blockade will be limited by the naval force of the belligerent, and, of consequence, the mischief to neutral commerce can not be very extensive. It is therefore of the last importance to neutrals that this principle be maintained unimpaired."

The British Courts of Vice-Admiralty, says Marshall, render "unjust decisions" in the case of captures. "The temptation which a rich neutral commerce offers to unprincipled avarice, at all times powerful, becomes irresistible unless strong and efficient restraints be imposed by the Government which employs it." If such restraints are not imposed, the belligerent Government thereby "causes the injuries it tolerates." Just this, says Marshall, is the case with the British Government.

For "the most effectual restraint is an impartial judiciary, which will decide impartially between the parties and uniformly condemn the captor in costs and damages, where the seizure has been made without probable cause." If this is not done, "indiscriminate captures will be made." If an "unjust judge" condemns the captured vessel, the profit is the captor's; if the vessel is discharged, the loss falls upon the owner.

Yet this has been and still is the indefensible course pursued against American commerce.

"The British Courts of Vice Admiralty, whatever may be the case, seldom acquit and when they do, costs and damages for detention are never awarded." Marshall demands that the British Government shall "infuse a spirit of justice and respect for law into the Courts of Vice Admiralty"--this alone, he insists, can check "their excessive and irritating vexations.... This spirit can only be infused by uniformly discountenancing and punis.h.i.+ng those who tarnish alike the seat of justice and the honor of their country, by converting themselves from judges into mere instruments of plunder." And Marshall broadly intimates that these courts are corrupt.

As to British impressment, "no right has been a.s.serted to impress"

Americans; "yet they are impressed, they are dragged on board British s.h.i.+ps of war with the evidence of citizens.h.i.+p in their hands, and forced by violence there to serve until conclusive testimonials of their birth can be obtained." He demands that the British Government stop this lawless, violent practice "by punis.h.i.+ng and frowning upon those who perpetrate it. The mere release of the injured, after a long course of service and of suffering, is no compensation for the past and no security for the future.... The United States therefore require positively that their seamen ... be exempt from impressments." Even "alien seamen, not British subjects, engaged in our merchant service ought to be equally exempt with citizens from impressments.... Britain has no pretext of right to their persons or to their service. To tear them, then, from our possession is, at the same time, an insult and an injury. It is an act of violence for which there exists no palliative."

Suppose, says Marshall, that America should do the things Great Britain was doing? "Should we impress from the merchant service of Britain not only Americans but foreigners, and even British subjects, how long would such a course of injury, unredressed, be permitted to pa.s.s unrevenged?

How long would the [British] Government be content with unsuccessful remonstrance and unavailing memorials?"

Or, were America to retaliate by inducing British sailors to enter the more attractive American service, as America might lawfully do, how would Great Britain look upon it? Therefore, concludes Marshall, "is it not more advisable to desist from, and to take effectual measures to prevent an acknowledged wrong, than be perseverant in that wrong, to excite against themselves the well founded resentment of America, and to force our Government into measures which may possibly terminate in an open rupture?"[1168]

Thus boldly and in justifiably harsh language did Marshall a.s.sert American rights as against British violation of them, just as he had similarly upheld those rights against French a.s.sault. Although France desisted from her lawless practices after Adams's second mission negotiated with Bonaparte an adjustment of our grievances,[1169] Great Britain persisted in the ruthless conduct which Marshall and his successors denounced until, twelve years later, America was driven to armed resistance.

Working patiently in his stuffy office amidst the Potomac miasma and mosquitoes during the sweltering months, it was Marshall's unhappy fate to behold the beginning of the break-up of that great party which had built our s.h.i.+p of state, set it upon the waters, navigated it for twelve tempestuous years, through the storms of domestic trouble and foreign danger.[1170] He was powerless to stay the Federalist disintegration.

Even in his home district Marshall's personal strength had turned to water, and at the election of his successor in Congress, his party was utterly crushed. "Mr. Mayo, who was proposed to succeed Gen. Marshall, lost his election by an immense majority," writes the alert Wolcott; "was grossly insulted in public by a brother-in-law of the late Senator Taylor, and was afterwards wounded by him in a duel. This is a specimen of the political influence of the Secretary of State in his own district."[1171]

Marshall himself was extremely depressed. "Ill news from Virginia," he writes Otis. "To succeed me has been elected by an immense majority one of the most decided democrats[1172] in the union." Upon the political horizon Marshall beheld only storm and blackness: "In Jersey, too, I am afraid things are going badly. In Maryland the full force of parties will be tried but the issue I should feel confident would be right if there did not appear to be a current setting against us of which the force is incalculable. There is a tide in the affairs of nations, of parties, and of individuals. I fear that of real Americanism is on the ebb."[1173] Never, perhaps, in the history of political parties was calm, dispa.s.sionate judgment and steady courage needed more than they were now required to avert Federalist defeat.

Yet in all the States revenge, apprehension, and despair blinded the eyes and deranged the councils of the supreme Federalist managers.[1174]

The voters in the party were confused and angered by the dissensions of those to whom they looked for guidance.[1175] The leaders agreed that Jefferson was the bearer of the flag of "anarchy and sedition," captain of the hordes of "lawlessness," and, above all, the remorseless antagonist of Nationalism. What should be done "by the friends of order and true liberty to keep the [presidential] chair from being occupied by an enemy [Jefferson] of both?" was the question which the distressed Federalist politicians asked one another.[1176]

In May, Hamilton thought that "to support _Adams_ and _Pinckney_ equally is the only thing that can save us from the fangs of _Jefferson_."[1177]

Yet, six days later, Hamilton wrote that "_most_ of the most _influential men_ of that [Federalist] party consider him [Adams] as a very _unfit_ and _incapable_ character.... My mind is made up. I will never more be responsible for him by any direct support, even though the consequence should be the election of _Jefferson_.... If the cause is to be sacrificed to a weak and perverse man, I withdraw from the party."[1178]

As the summer wore on, so acrimonious grew the feeling of Hamilton's supporters toward the President that they seriously considered whether his reelection would not be as great a misfortune as the success of the Republican Party.[1179] Although the Federalist caucus had agreed to support Adams and Pinckney equally as the party's candidates for President,[1180] yet the Hamiltonian faction decided to place Pinckney in the presidential chair.[1181]

But, blindly as they groped, their failing vision was still clear enough to discern that the small local leaders in New England, which was the strong Federalist section of the country, were for Adams;[1182] and that everywhere the party's rank and file, though irritated and perplexed, were standing by the President. His real statesmans.h.i.+p had made an impression on the ma.s.ses of his party: Dayton declared that Adams was "the most popular man in the United States."[1183] Knox a.s.sured the President that "the great body of the federal sentiment confide implicitly in your knowledge and virtue.... They will ... cling to you in preference to all others."[1184]

Some urged Adams to overthrow the Hamiltonian cabal which opposed him.

"Cunning half Jacobins a.s.sure the President that he can combine the virtuous and moderate men of both parties, and that all our difficulties are owing to an oligarchy which it is in his power to crush, and thus acquire the general support of the nation,"[1185] testifies Wolcott.

The President heeded this mad counsel. Hamilton and his crew were not the party, said Adams; they were only a faction and a "British faction"

at that.[1186] He would "rip it up."[1187] The justly angered President, it appears, thought of founding a new party, an American Party, "a const.i.tutionalist party."[1188] It was said that the astute Jefferson so played upon him that Adams came to think the engaging but crafty Virginian aspired only to be and to be known as the first lieutenant of the Ma.s.sachusetts statesman.[1189] Adams concluded that he could make up any Federalist loss at the polls by courting the Republicans, whose "friends.h.i.+p," wrote Ames, "he seeks for himself."[1190]

But the Republicans had almost recovered from the effect of the X. Y. Z.

disclosures. "The _rabies canina_ of Jacobinism has gradually spread ...

from the cities, where it was confined to docks and mob, to the country,"[1191] was the tidings of woe that Ames sent to Gore. The Hamiltonian leaders despaired of the continuance of the Government and saw "a convulsion of revolution" as the result of "excessive democracy."[1192] The union of all Federalist votes was "the only measure by which the government can be preserved."[1193] But Federalist union! As well ask shattered gla.s.s to remould itself!

The harmonious and disciplined Republicans were superbly led. Jefferson combined their battle-cries of the last two years into one mighty appeal--simple, affirmative, popular. Peace, economy, "freedom of the press, freedom of religion, trial by jury, ... no standing armies," were the issues he announced, together with the supreme issue of all, States'

Rights. Upon this latter doctrine Jefferson planted all the Republican guns and directed their fire on "centralization" which, said he, would "monarchise" our Government and make it "the most corrupt on earth,"

with increased "stock-jobbing, speculating, plundering, office-holding, and office-hunting."[1194]

The Federalists could reply but feebly. The tax-gatherer's fingers were in every man's pockets; and Adams had pardoned the men who had resisted the collectors of tribute. The increased revenue was required for the army and navy, which, thought the people, were worse than needless[1195]

if there were to be no war and the President's second mission made hostilities improbable (they had forgotten that this very preparation had been the princ.i.p.al means of changing the haughty att.i.tude of France). The Alien and Sedition Laws had infuriated the "foreign"

voters[1196] and alarmed thousands of American-born citizens. Even that potent bribe of free inst.i.tutions, the expectation of office, could no longer be employed effectively with the party workers, who, testifies Ebenezer Huntington, were going over "to Jefferson in hopes to partake of the loaves and fishes, which are to be distributed by the new President."[1197]

The Federalist leaders did nothing, therefore, but write letters to one another denouncing the "Jacobins" and prophesying "anarchy." "Behold France--what is theory here is fact there."[1198] Even the tractable McHenry was disgusted with his stronger a.s.sociates. "Their conduct,"

said he, "is tremulous, timid, feeble, deceptive & cowardly. They write private letters. To whom? To each other. But they do nothing.... If the party recover its pristine energy & splendor, shall I ascribe it to such cunning, paltry, indecisive, backdoor conduct?"[1199]

What had become of the French mission?[1200] Would to G.o.d it might fail!

That outcome might yet save the Federalist fortunes. "If Mr. Marshall has any [news of the second French mission] beg him to let it out,"

implored Chauncey Goodrich.[1201] But Marshall had none for public inspection. The envoys' dispatches of May 17,[1202] which had reached him nearly seven weeks afterward, were perplexing. Indeed, Marshall was "much inclined to think that ... the French government may be inclined to protract it [the negotiation] in the expectation that events in America[1203] may place them on higher ground than that which they now occupy."[1204] To Hamilton, he cautiously wrote that the dispatches contained nothing "on which a positive opinion respecting the result of that negotiation can be formed."[1205]

But he told the President that he feared "the impression which will probably be made by the New York Election,"[1206] and that European military developments might defeat the mission's purpose. He advised Adams to consider what then should be done. Should "hostilities against France with the exception of their West India privateers ... be continued if on their part a change of conduct shall be manifest?"[1207] Adams was so perturbed that he asked Marshall whether, in case the envoys returned without a treaty, Congress ought not to be asked to declare war, which already it had done in effect. For, said Adams, "the public mind cannot be held in a state of suspense; public opinion must be always a decided one whether right or not."[1208]

Marshall counseled patience and moderation. Indeed, he finally informed Adams that he hoped for an adjustment: "I am greatly disposed to think,"

he advised the President, "that the present [French] government is much inclined to correct, at least in part, the follies of the past. Of these, none were perhaps more conspicuous or more injurious to the french nation, than their haughty and hostile conduct to neutrals.