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