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]
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]