The Life of John Marshall
Chapter 227 : Opinions were read by Marshall and Story, but evidently they bored the nervous Pinkney

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]

The treaty by which Spain ceded Florida to the United States a.s.sures to the people living in that Territory "the enjoyment of the privileges, rights, and immunities" of American citizens; "they do not however, partic.i.p.ate in political power; they do not share in the government till Florida shall become a state. In the meantime Florida continues to be a Territory of the United States, governed by virtue of that clause in the Const.i.tution which empowers Congress 'to make all needful rules & regulations respecting the territory or other property belonging to the United States.'"[359]

The Florida salvage act is not violative of the Const.i.tution. The courts upon which that law confers jurisdiction are not "Const.i.tutional Courts; ... they are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States.... Although admiralty jurisdiction can be exercised, in the States, in those courts only" which are authorized by the Const.i.tution, the same limitation does not extend to the Territories. In legislating for them, Congress exercises the combined powers of the general and of a state government.[360]

Admirable and formative as were Marshall's opinions of the law of nations, they received no attention from the people, no opposition from the politicians, and were generally approved by the bar. At the very next term of the Supreme Court, after the decision in the case of the Nereid, an opinion was delivered by Story that aroused more contention and had greater effect on the American Nation than had all the decisions of the Supreme Court on international law up to that time.

This was the opinion in the famous case of Martin _vs._ Hunter's Lessee.

It was Story's first exposition of Const.i.tutional law and it closely resembles Marshall's best interpretations of the Const.i.tution. So conspicuous is this fact that the bench and bar generally have adopted the view that the Chief Justice was, in effect, the spiritual author of this commanding judicial utterance.[361] But Story had now been by Marshall's side on the Supreme Bench for four years and, in his ardent way, had become more strenuously Nationalist, at least in expression, than Marshall.[362]

That the Chief Justice himself did not deliver this opinion was due to the circ.u.mstance that his brother, James M. Marshall, was involved in the controversy; was, indeed, a real party in interest. This fact, together with the personal hatred of Marshall by the head of the Virginia Republican organization, had much to do with the stirring events that attended and followed this litigation.

At the time of the Fairfax-Hunter controversy, Virginia was governed by one of the most efficient party organizations ever developed under free inst.i.tutions. Its head was Spencer Roane, President of the Court of Appeals, the highest tribunal in the State, an able and learned man of strong prejudices and domineering character. Jefferson had intended to appoint Roane Chief Justice of the United States upon the expected retirement of Ellsworth.[363] But Ellsworth's timely resignation gave Adams the opportunity to appoint Marshall. Thus Roane's highest ambition was destroyed and his lifelong dislike of Marshall became a personal and a virulent animosity.

Roane was supported by his cousin, Thomas Ritchie, editor of the Richmond _Enquirer_, the most influential of Southern newspapers, and, indeed, one of the most powerful journals in the Nation. Another of the Virginia junto was John Taylor of Caroline County, a brilliant, unselfish, and sincere man. Back of this triumvirate was Thomas Jefferson with his immense popularity and his unrivaled political sagacity. These men were the commanding officers of a self-perpetuating governmental system based on the smallest political unit, the County Courts. These courts were made up of justices of the peace appointed by the Governor. Vacancies in the County Courts were filled only on the recommendation of the remaining members.[364] These justices of the peace also named the men to be sent to the State Legislature which appointed the Governor and also chose the members of the Court of Appeals who held office for life.[365] A perfect circle of political action was thus formed, the permanent and controlling center of which was the Court of Appeals.

These, then, were the judge, the court, and the party organization which now defied the Supreme Court of the United States. By one of those curious jumbles by which Fate confuses mortals, the excuse for this defiance of Nationalism by Localism arose from a land investment by Marshall and his brother. Thus the fact of the purchase of the larger part of the Fairfax estate[366] is woven into the Const.i.tutional development of the Nation.

Five years before the Marshall syndicate made this investment,[367] one David Hunter obtained from Virginia a grant of seven hundred and eighty-eight acres of that part of the Fairfax holdings known as "waste and ungranted land."[368] The grant was made under the various confiscatory acts of the Virginia Legislature pa.s.sed during the Revolution. These acts had not been carried into effect, however, and in 1783 the Treaty of Peace put an end to subsequent proceedings under them.

Denny Martin Fairfax, the devisee of Lord Fairfax, denied the validity of Hunter's grant from the State on the ground that Virginia did not execute her confiscatory statutes during the war, and that all lands and property to which those laws applied were protected by the Treaty of Peace. In 1791, two years after he obtained his grant and eight years after the ratification of the treaty, Hunter brought suit in the Superior Court at Winchester[369] against Fairfax's devisee for the recovery of the land. The action was under the ancient form of legal procedure still practiced, and bore the t.i.tle of "Timothy Trit.i.tle, Lessee of David Hunter, _vs._ Denny Fairfax," Devisee of Thomas, Lord Fairfax.[370] The facts were agreed to by the parties and, on April 24, 1794, the court decided against Hunter,[371] who appealed to the Court of Appeals at Richmond.[372] Two years later, in May, 1796, the case was argued before Judges Roane, Fleming, Lyons, and Carrington.[373]

Meanwhile the Jay Treaty had been ratified, thus confirming the guarantees of the Treaty of Peace to the holders of t.i.tles of lands which Virginia, in her confiscatory acts, had declared forfeited.

At the winter session, 1796-97, of the Virginia Legislature, Marshall, acting for his brother and brother-in-law, as well as for himself, agreed to execute deeds to relinquish their joint claims "to the waste and unappropriated lands in the Northern Neck" upon condition that the State would confirm the Fairfax t.i.tle to lands specifically appropriated[374] by Lord Fairfax or by his devisee. But for the statement made many years later by Judges Roane and Fleming, of the Court of Appeals, that this adjustment covered the land claimed by Hunter, it would appear that Marshall did not intend to include it in the compromise,[375] even if, as seems improbable, it was a part of the Marshall syndicate's purchase; for the decision of the court at Winchester had been against Hunter, and after that decision and before the compromise, the Jay Treaty had settled the question of t.i.tle.

On October 18, 1806, the Marshall syndicate, having finally made the remaining payments for that part of the Fairfax estate purchased by it--fourteen thousand pounds in all--Philip Martin, the devisee of Denny M. Fairfax, executed his warranty to John and James M. Marshall and their brother-in-law, Rawleigh Colston; and this deed was duly recorded in Fauquier, Warren, Frederick, and Shenandoah Counties, where the Fairfax lands were situated.[376] Nearly ten years before this conveyance, James M. Marshall separately had purchased from Denny Martin Fairfax large quant.i.ties of land in Shenandoah and Hardy Counties where the Hunter grant probably was situated.[377]

It would seem that James M. Marshall continued in peaceful possession of the land, the t.i.tle to which the Winchester court had decreed to be in the Fairfax devisee and not in Hunter. When Denny M. Fairfax died, he devised his estate to his younger brother[378] Major-General Philip Martin. About the same time he made James M. Marshall his administrator, with the will annexed, apparently for the purpose of enabling him to collect old rents.[379] For thirteen years and six months the case of Hunter _vs._ Fairfax's Devisee slumbered in the drowsy archives of the Virginia Court of Appeals. In the autumn of 1809, however, Hunter demanded a hearing of it and, on October 25, of that year, it was reargued.[380] Hunter was represented by John Wickham, then the acknowledged leader of the Virginia bar, and by another lawyer named Williams.[381] Daniel Call appeared for the Fairfax devisee.

The following spring[382] the Court of Appeals decided in favor of Hunter, reversing the judgment of the lower court rendered more than sixteen years before. In his opinion Roane, revealing his animosity to Marshall, declared that the compromise of 1796 covered the case. "I can never consent that the appellees,[383] after having got the benefit thereof, should refuse to submit thereto, or pay the equivalent; the consequence of which would be, that the Commonwealth would have to remunerate the appellant for the land recovered from him! Such a course cannot be justified on the principles of justice and good faith; and, I confess, I was not a little surprised that the objection should have been raised in the case before us."[384]

To this judgment the Fairfax devisee[385] obtained from the Supreme Court of the United States[386] a writ of error to the Virginia court under Section 25 of the Ellsworth Judiciary Act, upon the ground that the case involved the construction of the Treaty of Peace with Great Britain and the Jay Treaty, the Virginia court having held against the right claimed by Fairfax's devisee under those treaties.[387]

The Supreme Court now consisted of two Federalists, Was.h.i.+ngton and Marshall, and five Republicans, Johnson, Livingston, Story, and Duval; and Todd, who was absent from illness at the decision of this cause.

Marshall declined to sit during the arguments, or to partic.i.p.ate in the deliberations and conclusions of his a.s.sociates. Indeed, throughout this litigation the Chief Justice may almost be said to have leaned backward.

It was with good reason that Henry S. Randall, the biographer and apologist of Jefferson, went out of his way to laud Marshall's "stainless private character" and pay tribute to his "austere public and private virtue."[388]

Eight years before the Hunter-Fairfax controversy was first brought to the Supreme Court, the case of the Granville heirs against William R.

Davie, Nathaniel Allen, and Josiah Collins, was tried at the June term, 1805, of the United States Court at Raleigh, North Carolina. Marshall, as Circuit Judge, sat with Potter, District Judge. The question was precisely that involved in the Fairfax t.i.tle. The grant to Lord Granville[389] was the same as that to Lord Fairfax.[390] North Carolina had pa.s.sed the same confiscatory acts against alien holdings as Virginia.[391] Under these statutes, Davie, Allen, and Collins obtained grants to parts of the Granville estate[392] identical with that of Hunter to a part of the Fairfax estate in Virginia.

Here was an excellent opportunity for Marshall to decide the Fairfax controversy once and for all. Nowhere was his reputation at that time higher than in North Carolina, nowhere was he more admired and trusted.[393] That his opinion would have been accepted by the State authorities and acquiesced in by the people, there can be no doubt.[394]

But the Chief Justice flatly stated that he would take no part in the trial because of an "opinion ... formed when he was very deeply interested (alluding to the cause of Lord Fairfax in Virginia). He could not consistently with his duty and the delicacy he felt, give an opinion in the cause."[395]

The case of Fairfax's Devisee _vs._ Hunter's Lessee was argued for the former by Charles Lee of Richmond and Walter Jones of Was.h.i.+ngton, D.C.

Robert Goodloe Harper of Baltimore appeared for Hunter. On both sides the argument was mainly upon the effect on the Fairfax t.i.tle of the Virginia confiscatory laws; of the proceedings or failure to proceed under them; and the bearing upon the controversy of the two treaties with Great Britain. Harper, however, insisted that the court consider the statute of Virginia which set forth and confirmed the Marshall compromise.

On March 15, 1813, Story delivered the opinion of the majority of the court, consisting of himself and Justices Was.h.i.+ngton, Livingston, Todd, and Duval. Johnson, alone, dissented. Story held that, since Virginia had not taken the prescribed steps to acquire legal possession of the land before the Treaty of Peace, the State could not do so afterward.

"The patent of the original plaintiff [Hunter] ... issued improvidently and pa.s.sed no t.i.tle whatever." To uphold Virginia's grant to Hunter "would be selling suits and controversies through the whole country."[396] It was not necessary, said Story, to consider the Treaty of Peace, since "we are well satisfied that the treaty of 1794[397]

completely protects and confirms the t.i.tle of Denny Fairfax."[398]