The Life of John Marshall (Volume 2 of 4)

All this was something that Jefferson had not seen. Jefferson's sojourn in France had been at the time when the French Revolution was just sprouting; and he foresaw only that beautiful idealism into which the glorious dreamers of the time fondly imagined the Revolution would flower.

But Marshall was in Paris after the guillotine had done its work; when corruption sat in the highest places of government; and when military glory in the name of liberty had become the deity of the people. So where Jefferson expected that the roses of peace would bloom, Marshall saw clusters of bayonets, as the fruitage of the French Revolution.

CHAPTER VIII

THE AMERICAN MEMORIAL

Separated far from Europe, we mean not to mingle in her quarrels. (Marshall.)

A fraudulent neutrality is no neutrality at all. (Marshall.)

We have a very considerable party in America who are strongly in our interest. (Madame de Villette.)

Four days after the festival of triumph to Bonaparte, Talleyrand's agents resumed their work. The sordid scenes were repeated, but their monotony was broken. Now the lady of the plot appeared upon the scene. In the long, vexed, and fruitless days of their stay in Paris, the American envoys, it seems, were not without the solace and diversion of the society of the French Capital.

Among the attractive feminine acquaintances they made, one was undoubtedly an agent of the French Foreign Office. Madame de Villette was one of the most engaging women in the French Capital.656 Cultivated, brilliant, and altogether charming, she made herself particularly agreeable to the American envoys. She and Marshall became especially good friends; but Madame de Villette ventured no diplomatic suggestions to him, notwithstanding his easy good nature. She was far too good a judge of character to commit that indiscretion. So was Talleyrand, who by this time had begun to appreciate Marshall's qualities. But Pinckney, hearty, handsome man of the world, but without Marshall's penetration and adroitness, was another matter. Gerry the intriguers could already count upon; and only one other member of the commission was necessary to their ends. Perhaps Pinckney might be won over by this captivating Frenchwoman. On some occasion Madame de Villette approached him: —

"Why will you not lend us money?" said she to Pinckney. "If you were to make us a loan, all matters will be adjusted. When you were contending for your Revolution we lent you money." Pinckney pointed out the differences – that America had requested a loan of France, and France now demanded a loan of America. "Oh, no," said she. "We do not make a demand; we think it more delicate that the offer should come from you; but M. Talleyrand has mentioned to me (who am surely not in his confidence) the necessity of your making us a loan, and I know that he has mentioned it to two or three others; and that you have been informed of it; and I will assure you that, if you remain here six months longer, you will not advance a single step further in your negotiations without a loan."

If that is so, bluntly answered Pinckney, the envoys might as well leave at once. "Why," exclaimed Talleyrand's fair agent, "that might possibly lead to a rupture, which you had better avoid; for we have a very considerable party in America who are strongly in our interest."657

The fox-like Talleyrand had scented another hole by which he might get at his elusive quarry. "Every man has his price" was his doctrine; and his experience hitherto had proved it sound. He found that the brilliant Paris adventurer, Beaumarchais, had a lawsuit against the State of Virginia. Beaumarchais had won this suit in the lower court and it was now pending on appeal. John Marshall was his attorney.658 Here, then, thought Talleyrand, was the way to reach this unknown quantity in his problem.

On December 17, Marshall, happening into Gerry's apartment, found Bellamy there. Beaumarchais had given a dinner to Marshall and his fellow envoys, from which Bellamy had been kept by a toothache. The envoys had returned Beaumarchais's courtesy; and he had retired from this dinner "much indisposed."659 Since then Marshall had not seen his client. Bellamy casually remarked that he had not known, until within a short time, that Marshall was the attorney for Beaumarchais, who, he said, had very high regard for his Virginia attorney.

Marshall, his lawyer's instincts at once aroused, told Bellamy that Beaumarchais's case was of very great magnitude and that he was deeply interested in it. Whereupon, in a low tone, spoken aside for his ear only, Bellamy told Marshall that, in case the latter won the suit, Beaumarchais would "sacrifice £50,000 Sterling of it as the private gratification" demanded by the Directory and Talleyrand, "so that the gratification might be made without any actual loss to the American government." Marshall rejected this offer and informed Pinckney of it.660

Marshall's character is revealed by the entry he promptly made in his Journal. "Having been originally the Counsel of Mr. de Beaumarchais, I had determined & so I informed Genl. Pinckney, that I would not by my voice establish any argument in his favor, but that I would positively oppose any admission of the claim of any French citizen if not accompanied with the admission of claims of the American citizens to property captured and condemned for want of a Rôle d'équipage."661

Bellamy then urged upon Gerry his plan of the Marshall-Beaumarchais arrangement. Talleyrand had been entertaining Gerry privately, and the flattered New Englander again wished to call on the French Minister, "to return the civility" by inviting Talleyrand to dinner.662 To Talleyrand, then, went Gerry in company with Bellamy and asked the Foreign Minister to dine with him. Then Gerry tediously reviewed the situation, concluding in a manner that must have amused the bored Talleyrand: He would rather see the envoys depart for some city in another nation, said Gerry, until the Directory would receive them, than to stay in Paris under the circumstances.

Gerry was sure that the French diplomat was alarmed by this stern threat. "M. Talleyrand appeared to be uneasy at this declaration," he told his colleagues. Still, Talleyrand avoided "saying a word on it"; but he did say that Bellamy's representations "might always be relied on." Talleyrand declared that he would go further; he would himself write out his propositions. This he proceeded to do, held the writing before Gerry's eyes and then burned it; after this performance Talleyrand said he would dine with Gerry "the decade [ten days] after the present."663

Meanwhile, however, Gerry dined with the Foreign Minister. It was not a merry function. Aside from his guest of honor, the French Minister also had at his board Hottenguer, Bellamy, and Hauteval. Gerry could not speak French and Hauteval acted as translator. It must have been a pallid feast; the brilliant, witty, accomplished Talleyrand, man of the world, bon vivant, and lover of gayety; the solemn, dull, and rigid Gerry; the three trained French agents, one of them, as interpreter, the only means of general communication.664 On rising from the table, Hottenguer at once brought up the question of the bribe. Would the envoys now give it? Had they the money ready? Gerry answered no!665

Talleyrand, by now the mouthpiece of the rising Bonaparte, had proposed terms of peace to Great Britain; "the price was a Bribe of a Million Sterling to be divided among Directors, Ministers, and others. Talleyrand's Department was to share one hundred thousand Pounds Sterling." The British Government declined.666

King in London hastens to inform his American diplomatic associates in Paris of this offer, and cautions the envoys to act in concert. To Pinckney, King writes in cipher his anxiety about Gerry, whose integrity King had hoped would "overcome a miserable vanity and a few little defects of character … which I now fear have been discovered by those who will be assiduous to turn them to mischief."

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 assailed by personal vanity, inflexible."667

Pinckney informs King of the situation in Paris on December 27, declaring "that we ought to request our Passports 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."668

Marshall now insists that the American case be formally stated to the French Government. Gerry at last agrees.669 Marshall, of course, prepares this vastly important state paper. For two weeks he works over the first half of this historic document. "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,"670 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.671

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."672 Two days later Marshall chronicles that "Mr. Gerry finished the examination of our letter to the Minister of Exterior Relations."673 A week later the letter, translated and signed, is delivered to Talleyrand.674

Upon this memorial were based future and successful American negotiations,675 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 friendship, 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 passed 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.676

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 accumulated wealth of ages, and a full population, enable the nations of Europe to support those wars."677

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."678

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, diminishing 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."679

"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 Genêt's assumption 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 [Genêt] 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.680 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 [Genêt] 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 Genêt'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." Genêt'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."681

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 ships 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 assent of any or all of the maritime Powers of Europe, she never conceived the idea of attaining that consent by force."682 "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,"683 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."684 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;685 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.686

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 preëxisting 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 circumstance, the preëxisting 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 assure 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 friendship."687