Volume II Part 57 (1/2)

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.