Prof. Franck writes: "As Louise Weinberg points out, "respect" but not "authority" makes all the difference. I would only add this: Jack Balkin's playful quotation from Chief Justice John Marshall's opinion in Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191 (1815), at 198, is neatly lifted and severed from its context. The case arose under the admiralty and maritime jurisdiction of the federal courts--as one might guess from the reference to "belligerent and neutral rights"--as a consequence of an American privateer's capture of a British merchant ship (carrying goods owned by a Dane claiming to be a neutral) during the War of 1812. At this point in his opinion Marshall is trying to determine the persuasiveness of a 1783 British precedent in a similar prize case, especially because:
"The United States having, at one time, formed a component part of the British empire, their prize law w! as our prize law. When we separated, it continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it."
The case had absolutely nothing to do with constitutional law; it did not "aris[e] under" the Constitution, federal law, or even a treaty. A tip of the hat to anyone who can locate a single opinion of Marshall's in which the decisions of non-American courts were regarded as having any authoritative bearing whatsoever on a ruling of his Court involving the interpretation of our Constitution. I'm confident it can't be done.
COMMENT: Prize law is part of an outdated customary international law governing war. (Prizes can no longer be taken under the laws of war.) Because there were few international tribunals in the 18th and 19th centuries, prize law was mostly determined by domestic courts, including British courts. The language cited above from Thirty Hogshea! ds demonstrates this fact. U.S. courts would look to other natio nal courts for determining prize law (and other customary international legal norms). However, this does not mean that "the case had absolutely nothing to do with constitutional law," as Prof. Franck puts it. It appears (I do not have the case in front of me) that the Supreme Court was construing the letters of marque Article I (8) provision (which constitutionally authorized U.S. privateers) in the Constitution in conformity with the customary international law governing prizes as construed by the English courts.
"The United States having, at one time, formed a component part of the British empire, their prize law w! as our prize law. When we separated, it continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it."
The case had absolutely nothing to do with constitutional law; it did not "aris[e] under" the Constitution, federal law, or even a treaty. A tip of the hat to anyone who can locate a single opinion of Marshall's in which the decisions of non-American courts were regarded as having any authoritative bearing whatsoever on a ruling of his Court involving the interpretation of our Constitution. I'm confident it can't be done.
COMMENT: Prize law is part of an outdated customary international law governing war. (Prizes can no longer be taken under the laws of war.) Because there were few international tribunals in the 18th and 19th centuries, prize law was mostly determined by domestic courts, including British courts. The language cited above from Thirty Hogshea! ds demonstrates this fact. U.S. courts would look to other natio nal courts for determining prize law (and other customary international legal norms). However, this does not mean that "the case had absolutely nothing to do with constitutional law," as Prof. Franck puts it. It appears (I do not have the case in front of me) that the Supreme Court was construing the letters of marque Article I (8) provision (which constitutionally authorized U.S. privateers) in the Constitution in conformity with the customary international law governing prizes as construed by the English courts.
Furthermore, Prof. Franck appears to be making an interesting argument that the Article III judicial power of federal courts falls into distinct (wholly separate?) areas: cases arising under the Constitution are distinct (wholly separate?) from cases of admiralty and maritime jurisdiction. However, the fact that the Constitution explicitly mentions that the federal courts have judicial power over cases of admiralty and maritime jurisdiction undercuts his argument. The Supreme Court in Thirty Hogsheads would be construing its Article III judicial power in light of the "decisions of non-American courts" -- namely the 1783 British case.
Francisco Forrest Martin
