Five. The Blue Antelope
Five
The Blue Antelope
IN THE MATTER OF SCOTT v. SCOTT
The Massachusetts Supreme Judicial Court
August 1, 1865
Justice Norton had conducted the prior day’s hearing in the matter of Scott v. Scott with all the enthusiasm of a man being asked to judge the needlework competition at a county fair. He appeared almost as enervated the following day when he delivered his oral judgment.
“Before I render my decision, I must first point out the oddity under our state laws, that this, its highest court, should have jurisdiction over marriage and divorce in the first instance, rather than solely as a right of appeal hereto. But the legislature has not yet removed such power to a court of family law, and so I must rule on what is inherently a most personal matter of little public interest to the state.…”
Graydon Saunders sat with one arm casually draped about the empty chairback on his left, while the petitioner, Henrietta Scott, sat on his right. He rolled his eyes at her in exaggeration as Norton continued with his litany of warnings, exceptions, and complaints.
“… that said,” Norton droned on, “a court must be convinced of no bias or harm to a respondent as a result of their failure or inability to appear before it. I am satisfied in this case that no such harm to Mr. Scott would arise by my rendering a decision in his absence.”
A nervous Henrietta glanced back at Charlotte and her father, who both winked reassuringly from their front-row seats. Charlotte wore a day dress in green, her lucky color, and clutched the sixpence in her hand, while Henrietta on her counsel’s advice was dressed entirely in black. It had been nearly a month, in fact, since she had worn any other color, as if in mourning for a marriage already dead.
“I have also found the petitioner to be a credible witness to the events of her marriage, notwithstanding the proclivity of her female sex toward hysteria”—in anticipation of Connie’s reaction, William put his hand firmly over hers—“and therefore entitled, pursuant to the Married Women’s Property Act of 1855, to sue for divorce on the grounds of cruelty alone.” Norton dramatically paused. “First, however, we must determine whether the marriage was valid at all. There is, unfortunately, no existing case law or legislation at the state or federal level to guide me on the validity of marriages at sea. Fortunately, I am absolved from making any such determination with respect to the marriage, and hence its dissolution, on the basis of lack of jurisdiction.”
Graydon Saunders sprang to his feet. “But Your Honor, the English court just awarded this court jurisdiction—”
“Mr. Saunders, sit down. You are a rather large man, and the people in back cannot see.”
It was a rare joke from Justice Roderick Norton, and was met with particularly appreciative laughter at that moment from the crowd of confused onlookers in the courtroom.
“My reasoning for this decision is manifold, counsellor for the petitioner will be gratified to know. Firstly, based on recent precedent, I find that the petitioner forfeited all rights to American citizenship from the instant of her marriage to a foreigner—in this case, an Englishman. Secondly, the petitioner intended to make England her place of residence, as evidenced by letters submitted to this court in support of her own petition for divorce. Thirdly, ownership of the property at issue arose from a bequest made on British soil during the marriage. Finally, Cunard, the owner of the ship on which the marriage vows were exchanged, is a British company, and American jurisprudence looks to where a ship’s owners are incorporated— not to where a vessel is registered—in deciding which laws to apply to any events or malfeasance at sea. Hence, in this matter, English law must prevail.
“According to the July seventeenth edition of The Times of London, which arrived on our shores only yesterday, Sir Cresswell of the Court for Divorce and Matrimonial Causes of England and Wales has made a different determination of sovereignty. Judge Ordinary Cresswell has ruled that where a ship is registered determines jurisdiction. I, however, am bound only by the laws of the Commonwealth of Massachusetts and of our nation as a whole.
“For these reasons, I hereby also decline to render judgment in the case of Scott v. Scott on the grounds of lack of jurisdiction, and remit the entirety of this matter back to the courts of England, where the petitioner is welcome to return to seek remedy and redress.”
Henrietta gripped the edge of the plaintiff’s table with both hands while Graydon Saunders hit his forehead with an audible smack.
“It’s a classic renvoi move,” he said, stunned.
“My God,” an equally shocked William muttered back, “it’s unheard of…”
“How Roderick must loathe remitting a decision to our former colonizer.”
“What does that mean, renvoi ?” asked Charlotte, who had rushed forward from her seat to throw her arms around Henrietta in consolation.
“It means the case has been shuttlecocked.” Graydon Saunders shook his head in disbelief. “Norton has essentially lobbed the matter back over to England, despite their stated deference to the laws of our land, and Cresswell will now have to determine in his court whether to apply English law, or American law, or refuse renvoi and send the matter back to us all over again. I need some whisky—boy!” He stood and waved to his clerk, then sank back down into his chair and mopped his brow with a checkered handkerchief.
“Can they do this?” cried Henrietta with increasing desperation.
“I’m afraid so, Mrs. Scott.” Graydon Saunders suddenly appeared smaller to them all, so not used to losing was he. “Such bandying back and forth between nations is a rarity, I will admit—what we call a ‘blue antelope.’”
“And the danger?” Charlotte pressed him.
“Without a higher court in either jurisdiction to stop it?” Saunders paused not for effect, for once, but from fear, and William reluctantly stepped in with the answer.
“That the case, I’m afraid, will never end.”