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Circuit Court Opinions:

Associate Justice Samuel Nelson, Durand v. Hollins (1860)

Associate Justice Samuel Nelson (1845–1872)

Durand v. Hollins, 8 F. Cas. 111 (C.C.S.D.N.Y. 1860) (No. 4,186) [Second Circuit]

Greytown, or San Juan Del Norte, was for much of the nineteenth century part of a British protectorate and later became part of Nicaragua. During the Gold Rush of the 1850s, the town was particularly important to American commerce. Cornelius Vanderbilt’s American Transit Company took prospectors by steamship from New York City to Greytown and then transported them across the isthmus so that they could board another ship to San Francisco.

Resentment of American control of the lucrative transit route caused tension between local citizens and Americans. These tensions boiled over in 1854 when locals seized American property and assaulted the U.S. minister when he intervened to prevent the arrest of an American for the killing of a local man. In response, President Franklin Pierce gave orders through Secretary of the Navy James Dobbin to send a warship, the U.S.S. Cyane, to Greytown. Upon his arrival, Hollins, the ship’s commander, went to local officials to demand compensation for damages to American property and an apology to the minister, but he was rebuffed.

Acting on presidential orders, Hollins then bombarded the town and dispatched U.S. Marines to set fire to it, resulting in the complete destruction of Greytown, its residents fleeing on a British ship. The act drew widespread criticism. Many considered it an encroachment on congressional power to declare war. In addition, the episode placed American-British relations at risk. Pierce nevertheless justified the bombardment by calling Greytown “a pretended community … not standing before the world in the attitude of an organized political society” and “a piratical resort of outlaws or a camp of savages.”

The Greytown incident did not lead to hostilities between the United States and Great Britain. The bombing did result in the destruction of American property, however, despite Pierce’s ostensible purpose of protecting American interests. Durand, an American property owner in Greytown, brought suit against Hollins seeking compensation for his loss. He asserted that Hollins had acted without proper authority, as the president and the secretary of the Navy had not been entitled to order the attack.

In upholding the legality of the orders, Justice Nelson invoked a broad view of executive power in the realm of foreign affairs, as he had in the Kaine case a few years earlier. The president was “the only legitimate organ of the general government” in dealings with foreign nations, Nelson wrote. Moreover, the chief executive was particularly entitled to exercise discretion with respect to the protection of Americans abroad. “Acts of lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and the protection, to be effectual or of any avail, may, not unfrequently, require the most prompt and decided action,” Nelson explained. As a result, the decision of whether “to interpose for the protection of the citizens at Greytown against an irresponsible and marauding community that had established itself there,” was Pierce’s alone, and the choice he made was “final and conclusive.” Durand has been cited in modern times as supporting robust executive authority over national security matters.