Volume IV Part 14 (1/2)

Opinions were read by Marshall and Story, but evidently they bored the nervous Pinkney, who ”was very restless, frequently moved his seat, and, when sitting, showed by the convulsive twitches of his face how anxious he was to come to the conflict. At last the judges ceased to read, and he sprang into the arena like a lion who has been loosed by his keepers on the gladiator that awaited him.” This large, stout man wore ”corsets to diminish his bulk,” used ”cosmetics ... to smooth and soften a skin growing somewhat wrinkled and rigid with age,” and dressed ”in a style which would be thought foppish in a much younger man.”[336] His harsh, unmusical voice, grating and high in tone, no less than his exaggerated fas.h.i.+onable attire, at first repelled; but these defects were soon forgotten because of ”his clear and forcible manner” of speaking, ”his powerful and commanding eloquence, occasionally illuminated with sparkling lights, but always logical and appropriate, and above all, his accurate and discriminating law knowledge, which he pours out with wonderful precision.”[337]

[Ill.u.s.tration]

Aloof, affected, overbearing[338] as he was, Pinkney overcame prejudice and compelled admiration ”by force of eloquence, logic and legal learning and by the display of naked talent,” testifies Ticknor, who adds that Pinkney ”left behind him ... all the public speaking I had ever heard.”[339] Emmet, the Irish exile, ”older in sorrows than in years,” with ”an appearance of premature age,” and wearing a ”settled melancholy in his countenance,” spoke directly to the point and with eloquence as persuasive as that of Pinkney was compelling.[340] Pinkney had insulted Emmet in a previous argument, and Marshall was so apprehensive that the Irish lawyer would now attack his opponent that Justice Livingston had to rea.s.sure the Chief Justice.[341]

The court was as much interested in the oratory as in the arguments of the counsel. Story's letters are rich in comment on the style and manner of the leading advocates. At the hearing of a cause at about the same time as that of the Nereid, he tells his wife that Pinkney and Samuel Dexter of Ma.s.sachusetts ”have called crowded houses; all the belles of the city have attended, and have been entranced for hours.” Dexter was ”calm, collected, and forcible, appealing to the judgment.” Pinkney, ”vivacious, sparkling, and glowing,” although not ”as close in his logic as Mr. Dexter,” but ”step[ping] aside at will from the path, and strew[ing] flowers of rhetoric around him.”[342]

The attendance of women at arguments before the Supreme Court had as much effect on the performance of counsel at this period as on the oratory delivered in House and Senate. One of the belles of Was.h.i.+ngton jotted down what took place on one such occasion. ”Curiosity led me, ...

to join the female crowd who throng the court room. A place in which I think women have no business.... One day Mr. Pinckney [_sic_] had finished his argument and was just about seating himself when Mrs.

Madison and a train of ladies enter'd,--he recommenced, went over the same ground, using fewer arguments, but scattering more flowers. And the day I was there I am certain he thought more of the female part of his audience than of the court, and on concluding, he recognized their presence, when he said, 'He would not weary the court, by going thro a long list of cases to prove his argument, as it would not only be fatiguing to them, but inimical to the laws of good taste, which _on the present occasion_, (bowing low) he wished to obey.”[343]

This, then, is a fairly accurate picture of the Supreme Court of the United States when the great arguments were made before it and its judgments delivered through the historic opinions of Marshall--such the conduct of counsel, the appearance of the Justices, the auditors in attendance. Always, then, when thinking of the hearings in the Supreme Court while he was Chief Justice, we must bear in mind some such scene as that just described.

William Pinkney, the incomparable and enigmatic, pa.s.sed away in time; but his place was taken by Daniel Webster, as able if not so accomplished, quite as interesting from the human point of view, and almost as picturesque. The lively, virile Clay succeeded the solid and methodical Dexter; and a procession of other eminent statesmen files past our eyes in the wake of those whose distinction for the moment had persuaded their admirers that their equals never would be seen again. It is essential to an understanding of the time that we firmly fix in our minds that the lawyers, no less than the judges, of that day, were publicists as well as lawyers. They were, indeed, statesmen, having deep in their minds the well-being of their Nation even more than the success of their clients.

Briefly stated, the facts in the case of the Nereid were as follows: More than a year after our second war with Great Britain had begun, one Manuel Pinto of Buenos Aires chartered the heavily armed British merchant s.h.i.+p, the Nereid, to take a cargo from London to the South American city and another back to the British metropolis. The Nereid sailed under the protection of a British naval convoy. The outgoing cargo belonged partly to Pinto, partly to other Spaniards, and partly to British subjects. When approaching Madeira an American privateer attacked the Nereid and, after a brief fight, captured the British vessel and took her to New York as a prize. The British part of the cargo was condemned without contest. That part belonging to Pinto and the other Spaniards was also awarded to the captors, but over the earnest opposition of the owners, who appealed to the Supreme Court. The arguments before the Supreme Court were long and uncommonly able. Those of Pinkney and Emmet, however, contained much florid ”eloquence.”[344]

s.p.a.ce permits no summary of these addresses; the most that can be given here is the substance of Marshall's very long and tedious opinion which is of no historical interest, except that part of it dealing with international law. The Chief Justice stated this capital question: ”Does the treaty between Spain and the United States subject the goods of either party, being neutral, to condemnation as enemy property, if found by the other in a vessel of an enemy? That treaty stipulates that neutral bottoms shall make neutral goods, but contains no stipulation that enemy bottoms shall communicate the hostile character to the cargo. It is contended by the captors that the two principles are so completely identified that the stipulation of the one necessarily includes the other.”

It was, said Marshall, ”a part of the original law of nations” that enemy goods in friendly vessels ”are prize of war,” and that friendly goods in enemy vessels must be restored if captured. The reason of this rule was that ”war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend.” Just as ”the neutral flag const.i.tutes no protection to enemy property,” so ”the belligerent flag communicates no hostile character to neutral property.”

The nature of the cargo, therefore, ”depends in no degree” upon the s.h.i.+p that carries it.[345]

Unless treaties expressly modified this immemorial law of nations there would, declared Marshall, ”seem to be no necessity” to suppose that an exception was intended. ”Treaties are formed upon deliberate reflection”; if they do not specifically designate that a particular item is to be taken out of the ”ancient rule,” it remains within it.

”The agreement [in the Spanish treaty] that neutral bottoms shall make neutral goods is ... a concession made by the belligerent to the neutral”; as such it is to be encouraged since ”it enlarges the sphere of neutral commerce, and gives to the neutral flag a capacity not given to it by the law of nations.”

On the contrary, a treaty ”stipulation which subjects neutral property, found in the bottom of an enemy, to condemnation as prize of war, is a concession made by the neutral to the belligerent. It narrows the sphere of neutral commerce, and takes from the neutral a privilege he possessed under the law of nations.” However, a government can make whatever contracts with another that it may wish to make. ”What shall restrain independent nations from making such a compact” as they please?[346]

Suppose that, regardless of ”our treaty with Spain, considered as an independent measure, the ordinances of that government would subject American property, under similar circ.u.mstances, to confiscation.” Ought Spanish property, for that reason, to be ”condemned as prize of war”?

That was not a question for courts to decide: ”Reciprocating to the subjects of a nation, or retaliating on them its unjust proceedings towards our citizens, is a political, not a legal measure. It is for the consideration of the government, not of its courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal.”

The Government is absolutely free to do what it thinks best: ”It is not for its courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics.” He and his a.s.sociates had no difficulty, said Marshall, in arriving at these conclusions. ”The line of part.i.tion” between ”belligerent rights and neutral privileges” is ”not so distinctly marked as to be clearly discernible.”[347] Nevertheless, the neutral part of the Nereid's cargo must ”be governed by the principles which would apply to it had the Nereid been a general s.h.i.+p.” That she was armed, that she fought to resist capture, did not charge the cargo with the belligerency of the s.h.i.+p, since the owners of the cargo had nothing to do with her armed equipment or belligerent conduct.

It is ”universally recognized as the original rule of the law of nations” that a neutral may s.h.i.+p his goods on a belligerent vessel. This right is ”founded on the plain and simple principle that the property of a friend remains his property wherever it may be found.”[348] That it is lodged in an armed belligerent s.h.i.+p does not take it out of this universal rule. The plain truth is, declares Marshall, that ”a belligerent has a perfect right to arm in his own defense; and a neutral has a perfect right to transport his goods in a belligerent vessel.”

Such merchandise ”does not cease to be neutral” because placed on an armed belligerent s.h.i.+p, nor when that vessel exercises the undoubted belligerent right forcibly to resist capture by the enemy.

s.h.i.+pping goods on an armed belligerent s.h.i.+p does not defeat or even impair the right of search. ”What is this right of search? Is it a substantive and independent right wantonly, and in the pride of power, to vex and hara.s.s neutral commerce, because there is a capacity to do so?” No! It is a right ”essential ... to the exercise of ... a full and perfect right to capture enemy goods and articles going to their enemy which are contraband of war.... It is a mean justified by the end,” and ”a right ... ancillary to the greater right of capture.”

For a neutral to place ”his goods in the vessel of an armed enemy” does not connect him with that enemy or give him a ”hostile character.” Armed or unarmed, ”it is the right and the duty of the carrier to avoid capture and to prevent a search.” Neither arming nor resistance is ”chargeable to the goods or their owner, where he has taken no part” in either.[349] Pinkney had cited two historical episodes, but Marshall waved these aside as of no bearing on the case. ”If the neutral character of the goods is forfeited by the resistance of the belligerent vessel, why is not the neutral character of the pa.s.sengers,” who did not engage in the conflict, ”forfeited by the same cause?”[350]

In the case of the Nereid, the goods of the neutral s.h.i.+pper were inviolable. Pinkney had drawn a horrid picture of the s.h.i.+p, partly warlike, partly peaceful, displaying either character as safety or profit dictated.[351] But, answers Marshall, falling into something like the rhetoric of his youth,[352] ”the Nereid has not that centaur-like appearance which has been ascribed to her. She does not rove over the ocean hurling the thunders of war while sheltered by the olive branch of peace.” Her character is not part neutral, part hostile.

”She is an open and declared belligerent; claiming all the rights, and subject to all the dangers of the belligerent character.” One of these rights is to carry neutral goods which were subject to ”the hazard of being taken into port” in case of the vessel's capture--in the event of which they would merely be ”obliged to seek another conveyance.” The s.h.i.+p might lawfully be captured and condemned; but the neutral cargo within it remained neutral, could not be forfeited, and must be returned to its owners.[353]

But Marshall anoints the wounds of the defeated Pinkney with a tribute to the skill and beauty of his oratory and argument: ”With a pencil dipped in the most vivid colors, and guided by the hand of a master, a splendid portrait has been drawn exhibiting this vessel and her freighter as forming a single figure, composed of the most discordant materials of peace and war. So exquisite was the skill of the artist, so dazzling the garb in which the figure was presented, that it required the exercise of that cold investigating faculty which ought always to belong to those who sit on this bench, to discover its only imperfection; its want of resemblance.”[354]

Such are examples of Marshall's expositions of international law and typical ill.u.s.trations of his method in statement and reasoning. His opinion in the case of the Nereid is notable, too, because Story dissented[355]--and for Joseph Story to disagree with John Marshall was a rare event. Justice Livingston also disagreed, and the British High Court of Admiralty maintained the contrary doctrine. But the principle announced by Marshall, that enemy bottoms do not make enemy goods and that neutral property is sacred, remained and still remains the American doctrine. Indeed, by the Declaration of Paris in 1856, the principle thus announced by Marshall in 1815 is now the accepted doctrine of the whole world.

Closely akin to the statesmans.h.i.+p displayed in his p.r.o.nouncements upon international law, was his a.s.sertion, in Insurance Co. _vs._ Canter,[356] that the Nation has power to acquire and to govern territory. The facts of this case were that a s.h.i.+p with a cargo of cotton, which was insured, was wrecked on the coast of Florida after that territory had been ceded to the United States and before it became a State of the Union. The cotton was saved, and taken to Key West, where, by order of a local court acting under a Territorial law, it was sold at auction to satisfy claims for salvage. Part of the cotton was purchased by one David Canter, who s.h.i.+pped it to Charleston, South Carolina, where the insurance companies libeled it. The libelants contended, among other things, that the Florida court was not competent to order the auction sale because the Territorial act was ”inconsistent”

with the National Const.i.tution. After a sharp and determined contest in the District and Circuit Courts of the United States at Charleston, in which Canter finally prevailed, the case was taken to the Supreme Court.[357]

Was the Territorial act, under which the local court at Key West ordered the auction sale, valid? The answer to that question, said Marshall, in delivering the opinion of the court, depends upon ”the relation in which Florida stands to the United States.” Since the National Government can make war and conclude treaties, it follows that it ”possesses the power of acquiring territory either by conquest or treaty.... Ceded territory becomes a part of the nation to which it is annexed”; but ”the relations of the inhabitants to each other [do not] undergo any change.” Their allegiance is transferred; but the law ”which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the state.”[358]