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

Bassett 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 constitutionality. 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 coördinate into

harmonious operation its various departments; and to make it in fact,

as well as in principle, the agent of a people constituting 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

unconstitutional; his closest friends thought them invalid. He himself

considered them to be, if within the Constitution 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 assigned 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 preëminence

in most branches of legal learning was admitted by his associates, 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 Constitution. "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 assistance of his learned junior

associate.[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 Massachusetts.[310]

Only in his expositions of the Constitution did Marshall take supreme

command. If he did anything preëminent, 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 illustrate

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 title 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 class 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 assent to

it." This assent 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 pass 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 title 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 Massachusetts.

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 restitution, 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 basement 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 Associate Justices sat

"inconveniently at the upper end" of an uncomfortable room "unfit for

the purpose for which it is used."[333] In the space 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

Associate 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 noble features and stately bearing of William Johnson, the handsome

face and erect attitude 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.

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

fashionable 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]

[Illustration]

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 reassure 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 Massachusetts "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 Washington

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, passed 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 ship, 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]

Space 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 constitutes 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 ship

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 circumstances, 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 associates had no difficulty, said Marshall, in

arriving at these conclusions. "The line of partition" 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 ship." That she was armed,

that she fought to resist capture, did not charge the cargo with the

belligerency of the ship, 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 ship 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 ship 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 ship, nor when that vessel exercises the undoubted

belligerent right forcibly to resist capture by the enemy.

Shipping goods on an armed belligerent ship 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 harass 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 passengers," who did not

engage in the conflict, "forfeited by the same cause?"[350]

In the case of the Nereid, the goods of the neutral shipper were

inviolable. Pinkney had drawn a horrid picture of the ship, 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

ship 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 illustrations 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 statesmanship displayed in his pronouncements upon

international law, was his assertion, 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 ship 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 shipped 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 Constitution. 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 assures to

the people living in that Territory "the enjoyment of the privileges,

rights, and immunities" of American citizens; "they do not however,

participate 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

Constitution 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 Constitution. The courts

upon which that law confers jurisdiction are not "Constitutional

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 Constitution,

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 Constitutional law and it closely

resembles Marshall's best interpretations of the Constitution. 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 circumstance 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

institutions. 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 Constitutional

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 passed 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 title of "Timothy Trititle,

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 titles 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 title 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 title.

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 quantities 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 title 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, Washington 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 participate in the

deliberations and conclusions of his associates. 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 title. The grant to Lord

Granville[389] was the same as that to Lord Fairfax.[390] North Carolina

had passed 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 Washington, D.C.

Robert Goodloe Harper of Baltimore appeared for Hunter. On both sides

the argument was mainly upon the effect on the Fairfax title 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 Washington, 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 passed no title 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 title of Denny Fairfax."[398]

In his dissenting opinion Justice Johnson ignored the "compromise" of

1796, holding that the grant by the State to Hunter extinguished the

right of Fairfax's devisee.[399] He concurred with Story and Washington,

however, in the opinion that, on the face of the record, the case came

within Section 25 of the Judiciary Act; that, therefore, the writ of

error had properly issued, and that the title must be inquired into

before considering "how far the ... treaty ... is applicable to

it."[400] Accordingly the mandate of the Supreme Court was directed to

the judges of the Virginia Court of Appeals, instructing them "to enter

judgment for the appellant, Philip Martin [the Fairfax devisee]." Like

all writs of the Supreme Court, it was, of course, issued in the name of

the Chief Justice.[401]

Hot was the wrath of Roane and the other judges of Virginia's highest

court when they received this order from the National tribunal at

Washington. At their next sitting they considered whether to obey or to

defy the mandate. They called in "the members of the bar generally,"

and the question "was solemnly argued" at Richmond for six consecutive

days.[402] On December 16, 1815, the decision was published. The

Virginia judges unanimously declined to obey the mandate of the Supreme

Court of the United States. Each judge rendered a separate opinion, and

all held that so much of Section 25 of the National Judiciary Act as

"extends the appellate jurisdiction of the Supreme Court to this court,

is not in pursuance of the constitution of the United States."[403]

But it was not only the Virginia Court of Appeals that now spoke; it was

the entire Republican partisan machine, intensively organized and

intelligently run, that brought its power to bear against the highest

tribunal of the Nation. Beyond all possible doubt, this Republican

organization, speaking through the supreme judiciary of the State,

represented public sentiment, generally, throughout the Old Dominion.

Unless this political significance of the opinions of the Virginia

judges be held of higher value than their legal quality, the account of

this historic controversy deserves no more than a brief paragraph

stating the legal point decided.

The central question was well set forth by Judge Cabell thus: Even where

the construction of a treaty is involved in the final decision of a

cause by the highest court of a State, that decision being against the

title of the party claiming under the treaty, can Congress "confer on

the Supreme Court of the United States, a power to _re-examine, by way

of appeal or writ of error, the decision of the state Court; to affirm

or reverse that decision; and in case of reversal, to command the state

Court to enter and execute a judgment different from that which it had

previously rendered_?"[404]

Every one of the judges answered in the negative. The opinion of Judge

Cabell was the ablest, and stated most clearly the real issue raised by

the Virginia court. Neither State nor National Government is dependent

one upon the other, he said; neither can act "_compulsively_" upon the

other. Controversies might arise between State and National Governments,

"yet the constitution has provided no umpire, has erected no tribunal by

which they shall be settled." Therefore, the National court could not

oblige the State court to "enter a judgment not its own."[405] The

meaning of the National "Constitution, laws and treaties, ... must,

in cases coming before State courts, be decided by the State

Judges, _according to their own judgments, and upon their own

responsibility_."[406] National tribunals belong to one sovereignty;

State tribunals to a different sovereignty--neither is "_superior_" to

the other; neither can command or instruct the other.[407]

Grant that this interpretation of the Constitution results in conflicts

between State and Nation and even deprives the "general government ...

of the power of executing its laws and treaties"; even so, "the defects

of our system of government must be remedied, not by the judiciary, but

by the sovereign power of the people." The Constitution must be amended

by the people, not by judicial interpretation;[408] yet Congress, in

Section 25 of the Judiciary Act, "attempts, in fact, to make the State

Courts _Inferior Federal Courts_." The appellate jurisdiction conferred

on the Supreme Court, and the word "_supreme_" itself, had reference to

inferior National courts and not to State courts.[409]

Judge Roane's opinion was very long and discussed extensively every

phase of the controversy. He held that, in giving National courts power

over State courts, Section 25 of the Ellsworth Judiciary Act violated

the National Constitution. If National courts could control State

tribunals, it would be a "plain case of the judiciary of one government

correcting and reversing the decisions of that of another."[410] The

Virginia Court of Appeals "is bound, to follow its own convictions ...

any thing in the decisions, or supposed decisions, of any other court,

to the contrary notwithstanding." Let the court at Winchester,

therefore, be instructed to execute the judgment of the State Court of

Appeals.[411]

Such was the open, aggressive, and dramatic defiance of the Supreme

Court of the United States by the Court of Appeals of Virginia. Roane

showed his opinion to Monroe, who approved it and sent it to Jefferson

at Monticello. Jefferson heartily commended Roane,[412] whereat the

Virginia judge was "very much flattered and gratified."[413]

Promptly Philip Martin, through James M. Marshall, took the case to the

Supreme Court by means of another writ of error. It now stood upon the

docket of that court as Martin _vs._ Hunter's Lessee. Again Marshall

refused to sit in the case. St. George Tucker of Virginia, one of the

ablest lawyers of the South, and Samuel Dexter, the leader of the

Massachusetts bar, appeared for Hunter.[414] As Harper had done on the

first appeal, both Tucker and Dexter called attention to the fact that

the decision of the Virginia Court of Appeals did not rest exclusively

upon the Treaty of Peace, which alone in this case would have authorized

an appeal to the Supreme Court.[415]

Story delivered the court's opinion, which was one of the longest and

ablest he ever wrote. The Constitution was not ordained by the States,

but "emphatically ... by 'the people of the United States.'[416]... Its

powers are expressed in general terms, leaving to the legislature, from

time to time, to adopt its own means to effectuate legitimate objects,

and to mold and model the exercise of its powers, as its own wisdom and

the public interests should require."[417] Story then quotes Sections 1

and 2 of Article III of the Constitution,[418] and continues: Thus is

"the voice of the whole American people solemnly declared, in

establishing one great department of that government which was, in many

respects, national, and in all, supreme." Congress cannot disregard this

Constitutional mandate. At a length which, but for the newness of the

question, would be intolerable, Story demonstrates that the

Constitutional grant of judiciary powers is "imperative."[419]

What, then, is the "nature and extent of the appellate jurisdiction of

the United States"? It embraces "every case ... not exclusively to be

decided by way of original jurisdiction." There is nothing in the

Constitution to "restrain its exercise over state tribunals in the

enumerated cases.... It is the case, ... and not the court, that gives

the jurisdiction."[420] If the appellate power does not extend to State

courts having concurrent jurisdiction of specified cases, then that

power does "not extend to all, but to some, cases"--whereas the

Constitution declares that it extends to all other cases than those over

which the Supreme Court is given original jurisdiction.[421]

With great care Story shows the "propriety" of this construction.[422]

Then, with repetitiousness after the true Marshall pattern, he

reasserts that the Constitution acts on States as well as upon

individuals, and gives many instances where the "sovereignty" of the

States are "restrained." State judges are not independent "in respect to

the powers granted to the United States";[423] and the appellate power

of the Nation extends to the State courts in cases prescribed in Section

25 of the Judiciary Act; for the Constitution does not limit this power

and "we dare not interpose a limitation where the people have not been

disposed to create one."[424]

The case decided on the former record, says Story, is not now before the

court. "The question now litigated is not upon the construction of a

treaty, but upon the constitutionality of a statute of the United

States, which is clearly within our jurisdiction." However, "from

motives of a public nature," the Supreme Court would "re-examine" the

grounds of its former decision.[425] After such reëxamination, extensive

in length and detail, he finds the first decision of the Supreme Court

to have been correct.

Story thus notices the Marshall adjustment of 1796: "If it be true (as

we are informed)" that the compromise had been effected, the court could

not take "judicial cognizance" of it "unless spread upon the record."

Aside from the Treaty of Peace, the Fairfax title "was, at all events,

perfect under the treaty of 1794."[426] In conclusion, Story announces:

"It is the opinion of the whole court that the judgment of the Court of

Appeals of Virginia, rendered on the mandate in this cause, be

reversed, and the judgment of the District Court, held at Winchester,

be, and the same is hereby affirmed."[427]

It has been commonly supposed that Marshall practically dictated Story's

two opinions in the Fairfax-Hunter controversy, and certain writers have

stated this to be the fact. As we have seen, Story himself, fifteen

years afterwards, declared that the Chief Justice had "concurred in

every word of the second opinion"; yet in a letter to his brother

concerning the effect of Story's opinion upon another suit in the State

court at Winchester, involving the same question, Marshall says: "The

case of Hunter & Fairfax is very absurdly put on the treaty of

94."[428]

Justice Johnson dissented in an opinion as inept and unhappy as his

dissent in Fletcher _vs._ Peck.[429] He concurs in the judgment of his

brethren, but, in doing so, indulges in a stump speech in which

Nationalism and State Rights are mingled in astounding fashion. The

Supreme Court of the United States, he says, "disavows all intention to

decide on the right to issue compulsory process to the state courts." To

be sure, the Supreme Court is "supreme over persons and cases as far as

our judicial powers extend," but it cannot assert "any compulsory

control over the state tribunals." He views "this question as one ...

which may affect, in its consequences, the permanence of the American

Union," since the Nation and "one of the greatest states" are in

collision. The "general government must cease to exist" if the Virginia

doctrine shall prevail, but "so firmly" was he "persuaded that the

American people can no longer enjoy the blessings of a free government,

whenever the state sovereignties shall be prostrated at the feet of the

general government," that he "could borrow the language of a celebrated

orator, and exclaim: 'I rejoice that Virginia has resisted.'"[430]

Nevertheless, Johnson agrees with the judgment of his associates and, in

doing so, delivers a Nationalist opinion, stronger if possible than that

of Story.[431]

The public benefits and the historic importance of the decision was the

assertion of the supremacy of the Supreme Court of the Nation over the

highest court of any State in all cases where the National Constitution,

laws and treaties--"the supreme law of the land"--are involved. The

decision of the Supreme Court in Martin _vs._ Hunter's Lessee went

further than any previous judicial pronouncement to establish the

relation between National courts and State tribunals which now exists

and will continue as long as the Republic endures.

When the news of this, the first Constitutional opinion ever delivered

by Story, got abroad, he was mercilessly assailed by his fellow

Republicans as a "renegade."[432] Congress refused to increase the

salaries of the members of the Supreme Court,[433] who found it hard to

live on the compensation allowed them,[434] and Story seriously

considered resigning from the bench and taking over the Baltimore

practice of Mr. Pinkney, who soon was to be appointed Minister to

Russia.[435] The decision aroused excitement and indignation throughout

Virginia. Roane's popularity increased from the Tide Water to the

Valley.[436] The Republican organization made a political issue of the

judgment of the National tribunal at Washington. Judge Roane issued his

orders to his political lieutenants. The party newspapers, led by the

_Enquirer_, inveighed against the "usurpation" by this distant Supreme

Court of the United States, a foreign power, an alien judiciary,

unsympathetic with Virginia, ignorant of the needs of Virginians.

This conflict between the Supreme Court of the United States and the

Court of Appeals of Virginia opened another phase of that fundamental

struggle which war was to decide--a fact without knowledge of which this

phase of American Constitutional history is colorless.

Not yet, however, was the astute Virginia Republican triumvirate ready

to unloose the lightnings of Virginia's wrath. That must be done only

when the whole South should reach a proper degree of emotion. This time

was not long to be delayed. Within three years Marshall's opinion in

M'Culloch _vs._ Maryland was to give Roane, Ritchie, and Taylor their

cue to come upon the stage as the spokesmen of Virginia and the entire

South, as the champions, indeed, of Localism everywhere throughout

America. Important were the parts they played in the drama of

Marshall's judicial career.

FOOTNOTES:

[300] See vol. III, chap. III, of this work.

[301] This is a fair inference from the statement of Joseph Story in his

autobiography: "I have ever considered the embargo a measure, which went

to the utmost limit of constructive power under the Constitution. It

stands upon the extreme verge of the Constitution, being in its very

form and terms an unlimited prohibition, or suspension of foreign

commerce." (Story, I, 185-86.) When it is remembered that after Story

was made Associate Justice his views became identical with those of

Marshall on almost every subject, it would seem likely that Story

expressed the opinions of the Chief Justice as well as his own on the

constitutionality of the Embargo.

[302] See, for instance, the case of William Dixon _et al._ _vs._ The

United States, 1 Brockenbrough, 177; United States _vs._ ----, _ib._

195; the case of the Fortuna, _ib._ 299; the case of the Brig Caroline,

_ib._ 384; Thomson and Dixon _vs._ United States (case of the Schooner

Patriot), _ib._ 407.

[303] 1 Brockenbrough, 241.

[304] See Warren, 279.

[305] Story to Fay, April 24, 1814, Story, I, 261.

[306] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 325. This was the case of the Little Charles.

[307] Same to same, July 13, 1819, _ib._ 326.

[308] Same to same, June 15, 1821, _ib._ 327; Sept. 18, 1821, _ib._ 331;

Dec. 9, 1823, _ib._ 334; June 26, 1831, _ib._ 344.

[309] Same to same, July 2, 1823, _ib._ 331-33.

[310] Same to same, Oct. 15, 1830, _ib._ 342.

[311] John Bassett Moore, in his _Digest of International Law_, cites

Marshall frequently and often uses passages from his opinions. Henry

Wheaton, in his _Elements of International Law_, sometimes quotes

Marshall's language as part of the text.

[312] Professor John Bassett Moore, in a letter to the author, says that

he considers Marshall's opinion in this case his greatest in the realm

of international law.

[313] _Am. State Papers, For. Rel._ III, 384.

[314] 7 Cranch, 136.

[315] 7 Cranch, 137.

[316] _Ib._ 138-39.

[317] _Ib._ 141.

[318] 7 Cranch, 147.

[319] See John Bassett Moore in Dillon, I, 521-23.

[320] See _supra_, chap. I.

[321] 3 Wheaton, 610-44.

[322] _Ib._ 614.

[323] 3 Wheaton, 634-35.

[324] 4 Wheaton, 63-64.

[325] 8 Cranch, 253-317.

[326] John Bassett Moore in Dillon, I, 524.

[327] 8 Cranch, 289.

[328] _Ib._ 291-92.

[329] _Ib._ 293.

[330] 9 Cranch, 388 _et seq._

[331] Until the February session of 1817. This room was not destroyed or

injured by the fire, but was closed while the remainder of the Capitol

was being repaired. In 1817, the court occupied another basement room in

the Capitol, where it continued to meet until February, 1819, when it

returned to its old quarters in the room where the library of the

Supreme Court is now situated. (Bryan: _History of the National

Capital_, II, 39.)

[332] _Ib._, I, 632. Mr. Bryan says that this house still stands and is

now known as 204-06 Pennsylvania Avenue, S.E.

[333] Ticknor to his father, Feb. 1815, Ticknor, I, 38.

[334] "His opinions had almost acquired the authority of judicial

decisions." (Pinkney: _Life of William Pinkney_, quotation from Robert

Goodloe Harper on title-page.)

[335] "He has ... a dogmatizing absoluteness of manner which passes with

the million, ... for an evidence of power; and he has acquired with

those around him a sort of papal infallibility." (Wirt to Gilmer, April

1, 1816, Kennedy, I, 403.)

Wirt's estimate of Pinkney must have been influenced by professional

jealousy, for men like Story and Marshall were as profoundly affected by

the Maryland legal genius as were the most emotional spectators. See the

criticisms of Wirt's comments on Pinkney by his nephew, Rev. William

Pinkney, in his _Life of William Pinkney_, 116-22.

[336] Ticknor to his father, Feb. [day omitted] 1815, Ticknor, I, 38-40.

[337] Story to Williams, Feb. 16, 1812, Story, I, 214; and March 6,

1814, _ib._ 252.

[338] "At the bar he is despotic and cares as little for his colleagues

or adversaries as if they were men of wood." (Wirt to Gilmer, April 1,

1816, Kennedy, I, 403.)

The late Roscoe Conkling was almost the reincarnation of William

Pinkney. In extravagance of dress, haughtiness of manner, retentiveness

of memory, power and brilliancy of mind, and genuine eloquence, Pinkney

and Conkling were well-nigh counterparts.

[339] Ticknor to his father, Feb. 21, 1815, Ticknor, I, 40.

[340] _Ib._ Feb. 1815, 39-40.

[341] Pinkney, 100-01.

[342] Story to his wife, March 10, 1814, Story, I, 253.

[343] Mrs. Samuel Harrison Smith to Mrs. Kirkpatrick, March 13, 1814,

_First Forty Years of Washington Society_: Hunt, 96.

Pinkney especially would become eloquent, even in an argument of dry,

commercial law, if women entered the court-room. "There were ladies

present--and Pinkney was expected to be eloquent at all events. So, the

mode he adopted was to get into his tragical tone in discussing the

construction of an act of Congress. Closing his speech in this solemn

tone he took his seat, saying to me, with a smile--'that will do for the

ladies.'" (Wirt to Gilmer, April 1, 1816, Kennedy, I, 404.)

The presence of women affected others no less than Pinkney. "Webster,

Wirt, Taney ... and Emmet, are the combatants, and a bevy of ladies are

the promised and brilliant distributors of the prizes," writes Story of

an argument in the Supreme Court many years later. (Story to Fay, March

8, 1826, Story, I, 493.)

[344] This is illustrated by the passage in Pinkney's argument to which

Marshall in his opinion paid such a remarkable tribute (see _infra_,

141).

[345] 9 Cranch, 418-19.

[346] 9 Cranch, 419-20.

[347] _Ib._ 422-23.

[348] 9 Cranch, 425.

[349] 9 Cranch, 426-29.

[350] _Ib._ 428-29.

[351] "We ... have Neutrality, soft and gentle and defenceless in

herself, yet clad in the panoply of her warlike neighbours--with the

frown of defiance upon her brow, and the smile of conciliation upon her

lip--with the spear of Achilles in one hand and a lying protestation of

innocence and helplessness unfolded in the other. Nay, ... we shall have

the branch of olive entwined around the bolt of Jove, and Neutrality in

the act of hurling the latter under the deceitful cover of the

former....

"Call you that Neutrality which thus conceals beneath its appropriate

vestment the giant limbs of War, and converts the charter-party of the

compting-house into a commission of marque and reprisals; which makes of

neutral trade a laboratory of belligerent annoyance; which ... warms a

torpid serpent into life, and places it beneath the footsteps of a

friend with a more appalling lustre on its crest and added venom in its

sting." (Wheaton: _Some Account of the Life, Writings, and Speeches of

William Pinkney_, 463, 466.)

Pinkney frankly said that his metaphors, "hastily conceived and

hazarded," were inspired by the presence of women "of this mixed and

(for a court of judicature) _uncommon_ audience." (_Ib._ 464-65.)

Except for this exhibition of rodomontade his address was a wonderful

display of reasoning and erudition. His brief peroration was eloquence

of the noblest order. (See entire speech, Wheaton: _Pinkney_, 455-516.)

[352] See vol. I, 72, 195, of this work.

[353] 9 Cranch, 430-31.

[354] _Ib._ 430.

[355] "Never in my whole life was I more entirely satisfied that the

Court were wrong in their judgment. I hope Mr. Pinkney will ... publish

his admirable argument ... it will do him immortal honor." (Story to

Williams, May 8, 1815, Story, I, 256.)

Exactly the same question as that decided in the case of the Nereid was

again brought before the Supreme Court two years later in the case of

the Atalanta. (3 Wheaton, 409.) Marshall merely stated that the former

decision governed the case. (_Ib._ 415.)

[356] The American Insurance Company _et al._ _vs._ David Canter, 1

Peters, 511-46.

[357] 1 Peters, 511-46.

[358] _Ib._ 542.

[359] 1 Peters, 542.

[360] _Ib._ 546.

[361] Story wrote George Ticknor that Marshall "concurred in every word

of it." (Story to Ticknor, Jan. 22, 1831, Story, II, 49.)

[362] "Let us extend the national authority over the whole extent of

power given by the Constitution. Let us have great military and naval

schools; an adequate regular army; the broad foundations laid of a

permanent navy; a national bank; a national system of bankruptcy; a

great navigation act; a general survey of our ports, and appointments of

port-wardens and pilots; Judicial Courts which shall embrace the ...

justices of the peace, for the commercial and national concerns of the

United States. By such enlarged and liberal institutions, the Government

of the United States will be endeared to the people.... Let us prevent

the possibility of a division, by creating great national interests

which shall bind us in an indissoluble chain." (Story to Williams, Feb.

22, 1815, _ib._ I, 254.)

Later in the same year Story repeated these views and added: "I most

sincerely hope that a national newspaper may be established at

Washington." (Story to Wheaton, Dec. 13, 1815, _ib._ 270-71.)

[363] Professor William E. Dodd, in _Am. Hist. Rev._ XII, 776.

[364] For fuller description of the Virginia County Court system, see

chap. IX of this volume.

[365] On the Virginia Republican machine, Roane, Ritchie, etc., see Dodd

in _Am. Hist. Rev._ XII, 776-77; and in _Branch Hist. Papers_, June,

1903, 222; Smith in _ib._ June, 1905, 15; Thrift in _ib._ June, 1908,

183; also Dodd: _Statesmen of the Old South_, 70 _et seq._; Anderson,

205; Turner: _Rise of the New West_, 60; Ambler: _Ritchie_, 27, 82.

[366] Several thousand acres of the Fairfax estate were not included in

this joint purchase. (See _infra_, 150.)

[367] 1793-94. See vol. II, 202-11, of this work.

[368] April 30, 1789. See Hunter _vs._ Fairfax's Devisee, 1 Munford,

223.

[369] For the district composed of Frederick, Berkeley, Hampshire,

Hardy, and Shenandoah Counties.

[370] Order Book, Superior Court, No. 2, 43, Office of Clerk of Circuit

Court, Frederick Co., Winchester, Va.

[371] The judges rendering this decision were St. George Tucker and

William Nelson, Jr. (_Ib._)

[372] In making out the record for appeal the fictitious name of Timothy

Trititle was, of course, omitted, so that in the Court of Appeals and in

the appeals to the Supreme Court of the United States the title of the

case is Hunter _vs._ Fairfax's Devisee, instead of "Timothy Trititle,

Lessee of David Hunter," _vs._ Fairfax's Devisee, and Martin _vs._

Hunter's Lessee.

[373] 1 Munford, 223.

[374] See vol. II, footnote to 209, of this work.

[375] The adjustment was made because of the memorial of about two

hundred settlers or squatters (mostly Germans) on the wild lands who

petitioned the Legislature to establish title in them. David Hunter was

not one of these petitioners. Marshall agreed to execute deeds

"extinguishing" the Fairfax title "so soon as the conveyance shall be

transmitted to me from Mr. Fairfax." (Marshall to the Speaker of the

House of Delegates, Va., Nov. 24, 1796. See vol. II, footnote to 209, of

this work.) The Fairfax deed to the Marshalls was not executed until ten

years after this compromise. (Land Causes, 1833, 40, Records in Office

of Clerk of Circuit Court, Fauquier Co., Va.)

[376] Two years later, on October 5, 1808, the Marshall brothers

effected a partition of the estate between themselves on the one part

and their brother-in-law on the other part, the latter receiving about

forty thousand acres. (Deed Book 36, 302, Records in Office of Clerk of

Circuit Court, Frederick Co., Va.)

[377] On August 30, 1797, Denny Martin Fairfax conveyed to James M.

Marshall all the Fairfax lands in Virginia "save and except ... the

manor of Leeds." (See Marshall _vs._ Conrad, 5 Call, 364.) Thereafter

James M. Marshall lived in Winchester for several years and made many

conveyances of land in Shenandoah and Berkeley Counties. For instance,

Nov. 12, 1798, to Charles Lee, Deed Book 3, 634, Records in Office of

Clerk of Circuit Court, Frederick County, Va.; Jan. 9, 1799, to Henry

Richards, _ib._ 549; Feb. 4, 1799, to Joseph Baker, Deed Book 25, _ib._

561; March 30, 1799, to Richard Miller, Deed Book 3, _ib._ 602, etc.

All of these deeds by James M. Marshall and Hester, his wife, recite

that these tracts and lots are parts of the lands conveyed to James M.

Marshall by Denny Martin Fairfax on August 30, 1797. John Marshall does

not join in any of these deeds. Apparently, therefore, he had no

personal interest in the tract claimed by Hunter.

In a letter to his brother Marshall speaks of the Shenandoah lands as

belonging to James M. Marshall: "With respect to the rents due Denny

Fairfax before the conveyance to you I should suppose a recovery could

only be defeated by the circumstance that they passed to you by the deed

conveying the land." (Marshall to his brother, Feb. 13, 1806, MS.)

At the time when the Fairfax heir, Philip Martin, executed a deed to the

Marshall brothers and Rawleigh Colston, conveying to them the Manor of

Leeds, the lands involved in the Hunter case had been owned by James M.

Marshall exclusively for nearly ten years.

After the partition with Colston, October 5, 1808, John and James M.

Marshall, on September 5, 1809, made a partial division between

themselves of Leeds Manor, and Goony Run Manor in Shenandoah County, the

latter going to James M. Marshall.

These records apparently establish the facts that the "compromise" of

1796 was not intended to include the land claimed by Hunter; that James

M. Marshall personally owned most of the lands about Winchester; and

that John Marshall had no personal interest whatever in the land in

controversy in the litigation under review.

This explains the refusal of the Supreme Court, including even Justice

Johnson, to take notice of the compromise of 1796. (See _infra_, 157.)

[378] When Lord Fairfax devised his Virginia estate to his nephew, Denny

Martin, he required him to take the name of Fairfax.

[379] Order Book, Superior Court of Frederick Co. Va., III, 721.

[380] 1 Munford, 223. The record states that Judge Tucker did not sit on

account of his near relationship to a person interested.

[381] It should be repeated that David Hunter was not one of the

destitute settlers who appealed to the Legislature in 1796. From the

records it would appear that he was a very prosperous farmer and

land-owner who could well afford to employ the best legal counsel, as he

did throughout the entire litigation. As early as 1771 we find him

selling to Edward Beeson 536 acres of land in Frederick County. (Deed