SPEECH OF WILLIAM PINKNEY,

IN THE CASE OF

THE NEREIDE,

BEFORE THE SUPREME COURT OF THE UNITED STATES.

1815.*

Mr. Pinkney for the Captors.

If I were about to address this high tribunal with a view to establish a reputation as an advocate, I should feel no ordinary degree of resentment against the gentleman whom I am compelled to follow;† if indeed it were possible to feel resentment against one who never fails to plant a strong and durable friendship in the hearts of all who know him. He has dealt with this great cause in a way so masterly, and has presented

* "At the session of the court in 1815, was brought to a hearing the celebrated case of the Nereide, the claim in which had been rejected in the district court of New York, and the goods condemned upon the ground that they were captured on board of an armed enemy's vessel which had resisted the exercise of the right of search. This cause had excited uncommon interest on account of the very great importance and novelty of the questions of public law involved in it, as well as the reputation of the advocates by whom it was discussed.

The claimant, Mr. Pinto, was a native and resident merchant of Buenos Ayres, which had declared its independence of the parent country, although it had not yet been acknowledged as a sovereign state by the government of this country. Being in London in 1813, he had chartered the British armed vessel in question, to carry his goods, and other the property of his father and sister, to Buenos Ayres, and took passage on board the vessel, which sailed under British convoy, and, having been separated from the convoying squadron, was captured off the island of Madeira, after a short action, by the United States' privateer Governor Tompkins."-Wheaton's Life of Pinkney, p. 126.

† Mr. Dallas.

it before you with such a provoking fulness of illustration, that his unlucky colleague can scarcely set his foot upon a single spot of it without trespassing on some one of those arguments which, with an admirable profusion, I had almost said prodigality, of learning, he has spread over the whole subject. Time, however, which changes all things, and man more than any thing, no longer permits me to speak upon the impulse of ambition. It has left me only that of duty; better, perhaps, than the feverish impulse which it has supplanted; sufficient, as I hope, to urge me, upon this and every other occasion, to maintain the cause of truth, by such exertions as may become a servant of the law in a forum like this. I shall be content, therefore, to travel after my learned friend, over a part of the track which he has at once smoothed and illuminated, happy, rather than displeased, that he has facilitated and justified the celerity with which I mean to traverse it; more happy still if I shall be able, as I pass along, to relieve the fatigue of your honors, the benevolent companions of my journey, by imparting something of freshness and novelty to the prospect around us. To this course, I am also reconciled by a pretty confident opinion, the result of general study as well as of particular meditation, that the discussion in which we are engaged has no claim to that air of intricacy which it has assumed; that, on the contrary, it turns upon a few very plain and familiar principles, which, if kept steadily in view, will guide us, in safety, through the worse than Cretan labyrinth of topics and authorities that seem to embarrass it, to such a conclusion as it may be fit for this court to sanction by its judgment.

I shall in the outset dismiss from the cause whatever has been rather insinuated with a prudent delicacy, than openly and directly pressed by my able opponents, with reference to the personal situation of the claimant, and of those with whom he is united in blood and interest. I am willing to admit that a Christian judicature may dare to feel for a desolate foreigner who

stands before it, not for life or death indeed, but for the fortunes of himself and his house. I am ready to concede, that when a friendly and a friendless stranger sues, for the restoration of his all, to human justice, she may sometimes wish to lay aside a portion of her sternness, to take him by the hand, and, exchanging her character for that of mercy, to raise him up from an abyss of doubt and fear to a pinnacle of hope and joy. In such circumstances, a temperate and guarded sympathy may not unfrequently be virtue. But this is the last place upon earth in which it can be necessary to state, that, if it be yielded to as a motive of decision, it ceases to be virtue, and becomes something infinitely worse than weakness. What may be the real value of Mr. Pinto's claim to our sympathy, it is impossible for us to be certain that we know; but thus much we are sure we know, that whatever may be its value in fact, in the balance of the law it is lighter than a feather shaken from a linnet's wing, lighter than the down that floats upon the breeze of summer. I throw into the opposite scale the ponderous claim of war; a claim of high concernment, not to us only, but to the world; a claim connected with the maritime strength of this maritime state, with public honor and individual enterprise, with all those passions and motives which can be made subservient to national success and glory in the hour of national trial and danger. I throw into the same scale the venerable code of universal law, before which it is the duty of this court, high as it is in dignity, and great as are its titles to reverence, to bow down with submission. I throw into the same scale a solemn treaty, binding upon the claimant and upon you. In a word, I throw into that scale the rights of belligerent America, and, as embodied with them, the rights of these captors, by whose efforts and at whose cost the naval exertions of the government have been seconded, until our once despised and drooping flag has been made to wave in triumph where neither France nor Spain could venture to show a prow. You may call these rights by what

name you please. You may call them iron rights: I care not: it is enough for me that they are rights. It is more than enough for me that they come before you encircled and adorned by the laurels which we have torn from the brow of the naval genius of England: that they come before you recommended, and endeared, and consecrated by a thousand recollections which it would be baseness and folly not to cherish, and that they are mingled, in fancy and in fact, with all the elements of our future greatness.

[Mr. Pinkney contended that the property ought to be considered as good prize of war on the following grounds.

First. That the treaty of 1795, between the United States and Spain, contained a positive stipulation, adopting the maxim of what has sometimes been called the law of nations, that, "free ships make free goods;" and that although it did not expressly mention the converse proposition, that enemy ships should make enemy goods," yet it did not negative that proposition; and as the two maxims had always been associated together in the practice of nations, the one was to be considered as implying the other.

Second. That by the Spanish prize code, neutral property, found on board enemies' vessels, was liable to capture and condemnation, and that this being the law of Spain, applied by her when belligerent to us and all other nations when neutral by the principle of reciprocity, the same rule was to be applied to the property of her subjects, which Mr. Pinto was to be taken to be, the government of the United States not having at that time acknowledged the independence of the Spanish American colonies.

Third. That the claim of Mr. Pinto ought to be rejected on account of his unneutral conduct in hiring, and putting his goods on board of an armed enemy's vessel, which sailed under convoy, and actually resistcd search.

After discussing the two first of the abovementioned grounds of argument, Mr. Pinkney proceeded.]

VOL. IV.

57

I come now to the third and last question, upon which, if I should be found to speak with more confidence than may be thought to become me, I stand upon this apology, that I have never been able to persuade myself that it was any question at all. I have consulted upon it the reputed oracles of universal law, with a wish disrespectful to their high vocation, that they would mislead me into doubt. But-pia sunt, nullumque nefas oracula suadent. I have listened to the counsel for the claimant, with a hope produced by his reputation for abilities and learning, that his argument would shake from me the sturdy conviction which held me in its grasp, and would substitute for it that mild and convenient scepticism that excites without oppressing the mind, and summons an advocate to the best exertion of his faculties, without taking from him the prospect of success, and the assurance that his cause deserves it. I have listened, I say, and am as great an infidel as ever.

My learned colleague, in his discourse upon this branch of the subject, relied, in some degree, upon circumstances, supposed by him to be in evidence, but by our opponents believed to be merely assumed. I will not rely upon any circumstances but such as are admitted by us all. I take the broad and general ground, which does not require the aid of such special considerations as might be borrowed from the contested facts.

The facts, which are not contested, are these: the claimant, Manuel Pinto, intending to make a large shipment of British merchandize from London, (where he then was,) to Buenos Ayres, (the place of his ordinary residence,) for himself and other Spaniards, and moreover to take on freight, and with a view to a commission on the sales, and a share in the profits, in South America, other merchandize belonging to British subjects, chartered at a fixed price, in the summer of 1813, the British ship the Nereide, for those purposes. The Nereide was armed, either at the time of the charter or afterwards, with ten guns; and her ar