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]