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."[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 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."[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 asserts, "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.