[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 fashion 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 Ship 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 ship 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 ship and cargo. The United States insisted that ship 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 shine. 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 ships 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 statesmanship 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 distinguishing him sharply from most jurists. The vessel in controversy, owned by citizens of Maryland, was, in 1810, captured by a French warship, 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 ships, 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 ship, 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 ship 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."

Nations are "distinct sovereignties, possessing equal rights and equal independence"; and, since mutual intercourse is for mutual benefit, "all sovereigns have consented" in certain cases to relax their "absolute and complete jurisdiction within their respective territories.... Common usage, and ... common opinion growing out of that usage" may determine whether such consent has been given.[314] Even when a nation has not expressly stipulated to modify its jurisdiction, it would be guilty of bad faith if "suddenly and without previous notice" it violated "the usages and received obligations of the civilized world."

One sovereign is not "amenable" to another in any respect, and "can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him." From the facts that sovereigns have "perfect equality and absolute independence," and that mutual intercourse and "an interchange of good offices with each other"

are to their common advantage, flows a cla.s.s of cases in which all sovereigns are "understood to waive the exercise of a part of that complete exclusive territorial jurisdiction" which is "the attribute of every nation."

One of these cases "is admitted to be the exemption of the person of the sovereign from arrest or detention within a foreign territory. If he enters that territory with the knowledge and license of its sovereign, that license, although containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation."[315]

The protection of foreign ministers stands "on the same principles." The governments to which they are accredited need not expressly consent that these ministers shall receive immunity, but are "supposed to a.s.sent to it." This a.s.sent is implied from the fact that, "without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad.... Therefore, a consent to receive him, implies a consent" that he shall be exempt from the territorial jurisdiction of the nation to which he is sent.[316]

The armies of one sovereign cannot pa.s.s through the territory of another without express permission; to do so would be a violation of faith.

Marshall here enters into the reasons for this obvious rule. But the case is far otherwise, he says, as to "ships of war entering the ports of a friendly power." The same dangers and injuries do not attend the entrance of such vessels into a port as are inseparable from the march of an army through a country. But as to foreign vessels, "if there be no prohibition," of which notice has been given, "the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and to remain in them while allowed to remain, under the protection of the government of the place."[317] Marshall goes into a long examination of whether the rule applies to ships of war, and concludes that it does. So the Exchange, now an armed vessel of France, rightfully came into the port of Philadelphia and, while there, is under the protection of the American Government.

In this situation can the t.i.tle to the vessel be adjudicated by American courts? It cannot, because the schooner "must be considered as having come into the American territory under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country."[318]

Over this general question there was much confusion and wrangling in the courts of various countries, but Marshall's opinion came to be universally accepted, and is the foundation of international law on that subject as it stands to-day.[319]

Scarcely any other judicial act of Marshall's life reveals so clearly his moral stature and strength. He was, as he declared, "exploring an unbeaten path," and could have rendered a contrary decision, sustaining it with plausible arguments. Had he allowed his feelings to influence his judgment; had he permitted his prejudices to affect his reason; had he heeded the desires of political friends--his opinion in the case of the Exchange would have been the reverse of what it was.

In the war then desolating Europe, he was an intense partisan of Great Britain and bitterly hostile to France.[320] He hated Napoleon with all the vigor of his being. He utterly disapproved of what he believed to be the Administration's truckling, or, at least, partiality, to the Emperor. Yet here was a ship, captured from Americans under the orders of that "satanic" ruler, a vessel armed by him and in his service. The emotions of John Marshall must have raged furiously; but he so utterly suppressed them that clear reason and considerations of statesmanship alone controlled him.

In the South American revolutions against Spain, American sailors generally and, indeed, the American people as a whole, ardently sympathized with those who sought to establish for themselves free and independent governments. Often American seamen took active part in the conflicts. On one such occasion three Yankee mariners, commissioned by the insurrectionary government of one of the revolting provinces, attacked a Spanish ship on the high seas, overawed the crew, and removed a large and valuable cargo. The offending sailors were indicted and tried in the United States Court for the District of Ma.s.sachusetts.

Upon the many questions arising in this case, United States _vs._ Palmer,[321] the judges, Story of the Supreme Court, and John Davis, District Judge, disagreed and these questions were certified to the Supreme Court for decision. One of these questions was: What, in international law, is the status of a revolting province during civil war?[322] In an extended and closely reasoned opinion, largely devoted to the construction of the act of Congress on piracy, the Chief Justice lays down the rule that the relation of the United States to parts of countries engaged in internecine war is a question which must be determined by the political departments of the Government and not by the Judicial Department. Questions of this kind "belong ... to those who can declare what the law shall be; who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise; to whom are entrusted all its foreign relations.... In such contests a nation may engage itself with the one party or the other; may observe absolute neutrality; may recognize the new state absolutely; or may make a limited recognition of it.

"The proceeding in courts must depend so entirely on the course of the government, that it is difficult to give a precise answer to questions which do not refer to a particular nation. It may be said, generally, that if the government remains neutral, and recognizes the existence of a civil war, its courts cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy. To decide otherwise, would be to determine that the war prosecuted by one of the parties was unlawful, and would be to arraign the nation to which the court belongs against that party. This would transcend the limits prescribed to the judicial department."[323]

So the Yankee "liberators" were set free.

Another instance of the haling of American citizens before the courts of the United States for having taken part in the wars of South American countries for liberation was the case of the Divina Pastora. This vessel was captured by a privateer manned and officered by Americans in the service of the United Provinces of Rio de la Plata. An American prize crew was placed on board the Spanish vessel which put into the port of New Bedford in stress of weather and was there libeled by the Spanish Consul. The United States District Court awarded rest.i.tution, the Circuit Court affirmed this decree, and the case was appealed to the Supreme Court.

Marshall held that the principle announced in the Palmer case governed the question arising from the capture of the Divina Pastora. "The United States, having recognized the existence of a civil war between Spain and her colonies, but remaining neutral, the courts of the Union are bound to consider as lawful those acts which war authorizes." Captures by privateers in the service of the revolting colonies are "regarded by us as other captures, jure belli, are regarded," unless our neutral rights or our laws or treaties are violated.[324]

The liberal statesman and humanitarian in Marshall on matters of foreign policy is often displayed in his international utterances. In the case of the Venus,[325] he dissented from the harsh judgment of the majority of the court, which clearly stated the cold law as it existed at the time, "that the property of an American citizen domiciled in a foreign country became, on the breaking out of war with that country, immediately confiscable as enemy's property, even though it was shipped before he had knowledge of the war."[326] Surely, said Marshall, that rule ought not to apply to a merchant who, when war breaks out, intends to leave the foreign country where he has been doing business. Whether or not his property is enemy property depends not alone on his residence in the enemy country, but also on his intention to remain after war begins. But it is plain that evidence of his intention can seldom, if ever, be given during peace and that it can be furnished only "after the war shall be known to him." Of consequence, "justice requires that subsequent testimony shall be received to prove a pre-existing fact."[327]

It is not true that extended residence in a foreign country in time of peace is evidence of intention to remain there permanently. "The stranger merely residing in a country during peace, however long his stay, ... cannot ... be considered as incorporated into that society, so as, immediately on a declaration of war, to become the enemy of his own."[328] Even the ancient writers on international law concede this principle. But modern commerce has sensibly influenced international law and greatly strengthened the common sense and generally accepted considerations just mentioned. All know, as a matter of everyday experience, that "merchants, while belonging politically to one society, are considered commercially as the members of another."[329] The real motives of the merchant should be taken into account.

Of the many cases in which Marshall rendered opinions touching upon international law, however, that of the Nereid[330] is perhaps the best known. The descriptions of the arguments in that controversy, and of the court when they were being made, are the most vivid and accurate that have been preserved of the Supreme Bench and the attorneys who practiced before it at that time. Because of this fact an account of the hearing in this celebrated case will be helpful to a realization of similar scenes.

The burning of the Capitol by the British in 1814 left the Supreme Court without its bas.e.m.e.nt room in that edifice; at the time the case of the Nereid was heard, and for two years afterward,[331] that tribunal held its sessions in the house of Elias Boudinot Caldwell, the clerk of the court, on Capitol Hill.[332] Marshall and the a.s.sociate Justices sat "inconveniently at the upper end" of an uncomfortable room "unfit for the purpose for which it is used."[333] In the s.p.a.ce before the court were the counsel and other lawyers who had gathered to hear the argument. Back of them were the spectators. On the occasion of this hearing, the room was well filled by members of the legal profession and by laymen, for everybody looked forward to a brilliant legal debate.

Nor were these expectations vain. The question was as to whether a certain cargo owned by neutrals, but found in an enemy ship, should be restored. The claimants were represented by J. Ogden Hoffman of New York and the universally known and talked of Thomas Addis Emmet, the Irish patriot whose pathetic experiences, not less than his brilliant talents, appealed strongly to Americans of that day. For the captors appeared Alexander J. Dallas of Pennsylvania and that strangest and most talented advocate of his time, William Pinkney of Maryland, exquisite dandy and profound lawyer,[334] affected fop and accomplished diplomat, insolent as he was able, haughty[335] as he was learned.

George Ticknor gives a vivid description of the judges and lawyers.

Marshall's neglected clothing was concealed by his flowing black robes, and his unkempt hair was combed, tied, and "fully powdered." The a.s.sociate Justices were similarly robed and powdered, and all "looked dignified." Justice Bushrod Washington, "a little sharp-faced gentleman with only one eye, and a profusion of snuff distributed over his face,"

did not, perhaps, add to the impressive appearance of the tribunal; but the n.o.ble features and stately bearing of William Johnson, the handsome face and erect att.i.tude of young Joseph Story, and the bald-headed, scholarly looking Brockholst Livingston, sitting beside Marshall, adequately filled in the picture of which he was the center.