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.