Volume IV Part 13 (1/2)
[295] Kent to Livingston, May 13, 1814, Hunt: _Livingston_, 181-82. Kent was appointed Chancellor of the State of New York, Feb. 25, 1814. His opinions are contained in _Johnson's Chancery Reports_, to which he refers in this letter.
For twenty years Livingston fought for what he believed to be his rights to the batture, and, in the end, was successful; but in such fas.h.i.+on that the full value of the property was only realized by his family long after his death.
Notwithstanding Jefferson's hostility, Livingston grew in public favor, was elected to the Louisiana State Legislature and then to Congress, where his work was notable. Later, in 1829, he was chosen United States Senator from that State; and, after serving one term, was appointed Secretary of State by President Jackson. In this office he prepared most of the President's state papers and wrote Jackson's great Nullification Proclamation in 1832.
Livingston was then sent as Minister to France and, by his brilliant conduct of the negotiations over the French Spoliation Claims, secured the payment of them. He won fame throughout Europe and Spanish America by his various works on the penal code and code of procedure. In the learning of the law he was not far inferior to Story and Kent.
Aside from one or two sketches, there is no account of his life except an inadequate biography by Charles H. Hunt.
[296] Story, I, 186.
[297] Marshall to Story, Sept. 18, 1821, _Proceedings, Ma.s.s. Hist. Soc._ 2d series, XIV, 330; and see _infra_, 363-64.
[298] Marbury _vs._ Madison.
[299] Marshall to Story, July 13, 1821, _Proceedings, Ma.s.s. Hist. Soc._ 2d series, XIV, 328-29.
CHAPTER III
INTERNATIONAL LAW
It was Marshall's lot in more than one case to blaze the way in the establishment of rules of international conduct. (John Ba.s.sett Moore.)
The defects of our system of government must be remedied, not by the judiciary, but by the sovereign power of the people. (Judge William H. Cabell of the Virginia Court of Appeals.)
I look upon this question as one which may affect, in its consequences, the permanence of the American Union. (Justice William Johnson of the Supreme Court.)
While Marshall unhesitatingly struck down State laws and shackled State authority, he just as firmly and promptly upheld National laws and National authority. In Marbury _vs._ Madison he proclaimed the power of National courts over Congressional legislation so that the denial of that power might not be admitted at a time when, to do so, would have yielded forever the vital principle of Judiciary supervision.[300] But that opinion is the significant exception to his otherwise unbroken practice of recognizing the validity of acts of Congress.
He carried out this practice even when he believed the law before him to be unwise in itself, injurious to the Nation, and, indeed, of extremely doubtful const.i.tutionality. This course was but a part of Marshall's Nationalist policy. The purpose of his life was to strengthen and enlarge the powers of the National Government; to coordinate into harmonious operation its various departments; and to make it in fact, as well as in principle, the agent of a people const.i.tuting a single, a strong, and efficient Nation.
A good example of his maintenance of National laws is his treatment of the Embargo, Non-Importation, and Non-Intercourse Acts. The hostility of the Chief Justice to those statutes was, as we have seen, extreme; the political party of which he was an ardent member had denounced them as unconst.i.tutional; his closest friends thought them invalid. He himself considered them to be, if within the Const.i.tution at all, on the periphery of it;[301] he believed them to be ruinous to the country and meant as an undeserved blow at Great Britain upon whose victory over France depended, in his opinion, the safety of America and the rescue of imperiled civilization.
Nevertheless, not once did Marshall, in his many opinions, so much as suggest a doubt of the validity of those measures, when cases came before him arising from them and requiring their interpretation and application. Most of these decisions are not now of the slightest historical importance.[302] His opinions relating to the Embargo are, indeed, tiresome and dull, with scarcely a flash of genius to brighten them. Now and then, but so rarely that search for it is not worth making, a paragraph blazes with the statement of a great principle. In the case of the s.h.i.+p Adventure and Her Cargo, one such statesmanlike expression illuminates the page. The Non-Intercourse Law forbade importation of British goods ”from any foreign port or place whatever.”
The British s.h.i.+p Adventure had been captured by a French frigate and given to the master and crew of an American brig which the Frenchmen had previously taken. The Americans brought the Adventure into Norfolk, Virginia, and there claimed the proceeds of s.h.i.+p and cargo. The United States insisted that s.h.i.+p and cargo should be forfeited to the Government because brought in from ”a foreign place.” But, said Marshall on this point: ”The broad navigable ocean, which is emphatically and truly termed the great highway of nations, cannot ... be denominated 'a foreign place.'... The sea is the common property of all nations. It belongs equally to all. None can appropriate it exclusively to themselves; nor is it 'foreign' to any.”[303]
Where special learning, or the examination of the technicalities and nice distinctions of the law were required, Marshall did not s.h.i.+ne. Of admiralty law in particular he knew little. The preparation of opinions in such cases he usually a.s.signed to Story who, not unjustly, has been considered the father of American admiralty law.[304] Also, in knowledge of the intricate law of real estate, Story was the superior of Marshall and, indeed, of all the other members of the court. Story's preeminence in most branches of legal learning was admitted by his a.s.sociates, all of whom gladly handed over to the youthful Justice more than his share of work. Story was flattered by the recognition. ”My brethren were so kind as to place confidence in my researches,”[305] he tells his friend Judge Samuel Fay.
During the entire twenty-four years that Marshall and Story were together on the Supreme Bench the Chief Justice sought and accepted the younger man's judgment and frankly acknowledged his authority in every variety of legal questions, excepting only those of international law or the interpretation of the Const.i.tution. ”I wish to consult you on a case which to me who am not versed in admiralty proceedings has some difficulty,” Marshall writes to Story in 1819.[306] In another letter Marshall asks Story's help on a ”question of great consequence.”[307]
Again and again he requests the a.s.sistance of his learned junior a.s.sociate.[308] Sometimes he addresses Story as though that erudite Justice were his superior.[309] Small wonder that John Marshall should declare that Story's ”loss would be irreparable” to the Supreme Bench, if he should be appointed to the place made vacant by the death of Chief Justice Parker of Ma.s.sachusetts.[310]
Only in his expositions of the Const.i.tution did Marshall take supreme command. If he did anything preeminent, other than the infusing of life into that instrument and thus creating a steadying force in the rampant activities of the young American people, it was his contributions to international law, which were of the highest order.[311]
The first two decades of his labors as Chief Justice were prolific in problems involving international relations. The capture of neutral s.h.i.+ps by the European belligerents; the complications incident to the struggle of Spanish provinces in South America for independence; the tangle of conflicting claims growing out of the African slave trade--the unsettled questions arising from all these sources made that period of Marshall's services unique in the number, importance, and novelty of cases requiring new and authoritative announcements of the law of nations. An outline of three or four of his opinions in such cases will show the quality of his work in that field of legal science and also ill.u.s.trate his broad conception of some of the fundamentals of American statesmans.h.i.+p in foreign affairs.
His opinion in the case of the Schooner Exchange lays down principles which embrace much more than was involved in the question immediately before the court[312]--a practice habitual with Marshall and distinguis.h.i.+ng him sharply from most jurists. The vessel in controversy, owned by citizens of Maryland, was, in 1810, captured by a French wars.h.i.+p, armed, and taken into the French service. The capture was made under one of the decrees of Napoleon when the war between Great Britain and France was raging fiercely. This was the Rambouillet Decree of March 23, 1810, which because of the Non-Intercourse Act of March 1, 1809, ordered that American s.h.i.+ps, entering French ports, be seized and sold.[313] The following year the Exchange, converted into a French national war-craft under the name of the Balaou, manned by a French crew, commanded by a French captain, Dennis M. Begon, put into the port of Philadelphia for repairs of injuries sustained in stress of weather.
The former owners of the vessel libeled the s.h.i.+p, alleging that the capture was illegal and demanding their property.
In due course this case came before Marshall who, on March 3, 1812, delivered a long and exhaustive opinion, the effect of which is that the question of t.i.tle to a s.h.i.+p having the character of a man-of-war is not justiciable in the courts of another country. The Chief Justice begins by avowing that he is ”exploring an unbeaten path” and must rely, mainly, on ”general principles.” A nation's jurisdiction within its own territory is ”necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.” The nation itself must consent to any restrictions upon its ”full and complete power ... within its own territories.”