John Marshall and International Law: Statesman and Chief Justice

By Frances Howell Rudko | Go to book overview

2
Attorney and Federalist

On March 2, 1814, Chief Justice John Marshall delivered the opinion of the Court in Brown v. United States ( 1814), 1 a case involving confiscation of enemy property during the War of 1812. Marshall wrote for a less than unanimous Court, as Justice Story's dissent, at least five times longer than Marshall's opinion, was joined by another "of [his] brethren." 2 The case is noteworthy because Marshall broadly discussed the belligerent's right to confiscate enemy property during war, an issue central to the defense in Ware v. Hylton et al. ( 1796), 3 the test case involving pre-Revolutionary war debts and the one case Marshall, as an attorney, argued before the Supreme Court. As Story's dissent indicated, the law of confiscation of enemy property during war was not settled. Marshall's interpretation of the law in the Brown case recognized both the "ancient practice of the law of nations" and the law as mitigated "by modern usage in civilized nations." 4 More importantly, Marshall defined the law of nations, expressing an insight gained from his experience in the political branches of the government. He recognized that a rule in the law of nations was, at any given time in history, a product of the political realities of the period: "The rule is addressed to the judgment of the sovereign. . . . [It] is, in its nature, flexible . . . subject to infinite modification . . . not an immutable rule of law, but depends on political considerations which may continually vary."5

The case arose out of a dispute over the ownership of cargo of an American-owned ship, the Emulous, taken as prize in the War of 1812. London merchants engaged the Emulous to deliver cargo to Plymouth, England. The ship sailed from Charlestown, South Carolina, and stopped in Savannah, Georgia, to take on its cargo of 550 tons of timber, 12,000 staves, and 18 tons of lathwood. While in port, it was detained under the April 4, 1812 embargo imposed by Congress on British goods. On April 25, the

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John Marshall and International Law: Statesman and Chief Justice
Table of contents

Table of contents

  • Recent Titles in Contributions in Political Science ii
  • Title Page iii
  • Contents ix
  • Acknowledgments xi
  • 1 - Introduction 1
  • Notes 6
  • 2 - Attorney and Federalist 11
  • Notes 37
  • 3 - Minister to France 47
  • Notes 73
  • 4 - United States Representative 83
  • 5 - Secretary of State 97
  • Notes 114
  • 6 - Conclusion 121
  • Notes 123
  • Bibliography 125
  • Index 139
  • About the Author 147
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