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One of the most far-reaching of all Marshall's opinions on questions of international law was that which he delivered in the case of the schooner "Exchange," decided by the Supreme Court in 1812. In preparing this opinion he was, as he declared, compelled to explore "an unbeaten path, with few, if any, aids from precedents or written laws;" for the status of a foreign man-of-war in a friendly port had not then been defined, even by the publicists. The "Exchange" was an American vessel, which had been captured and confiscated by the French under the Rambouillet decree,--a decree which both the Executive and the Congress of the United States had declared to constitute a violation of the law of nations. She was afterwards converted by the French government into a man-of-war, and commissioned under the name of the "Balaou." In this character she entered a port of the United States, where she was libelled by the original American owners for restitution. Seasoning by analogy, Marshall, in a remarkably luminous opinion, held that the vessel, as a French man-of-war, was not subject to the jurisdiction of the ordinary tribunals; and his opinion forms the basis of the law on the subject at the present day.

By this decision, the rightfulness or the wrongfulness of the capture and condemnation of the "Exchange" was left to be determined by the two governments as a political question. In this respect Marshall maintained, as between the different departments of government, when dealing with questions of foreign affairs, a distinction which he afterwards sedulously preserved, confining the jurisdiction of the courts to judicial questions. Thus he laid it down in the clearest terms that the recognition of national independence, or of belligerency, being in its nature a political act, belongs to the political branch of the government, and that in such matters the courts follow the political branch. Referring, on another occasion, to a similar question, he said: "In a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either side should refuse to abide by the measures adopted by its own government.... If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied." (Foster _v_. Neilson).

In the case of the American Insurance Company _v_. Canter, he asserted the right of the government to enlarge the national domain, saying: "The Constitution confers absolutely on the government of the Union the power of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty." But he held the rights of private property in such case to be inviolate (U.S. _v_. Percheman). The most luminous exposition of discovery as a source of title, and of the nature of Indian titles, is to be found in one of his opinions (Johnson _v_. McIntosh).

A fundamental doctrine of international law is that of the equality of nations. If a clear and unequivocal expression of it be desired, it may be found in the opinion of Marshall in the case of "The Antelope." "No nation," he declared, "can make a law of nations. No principle is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights." And when the representatives of the United States fifty years later sought to establish at Geneva the liability of Great Britain for the depredations of the "Alabama" and other Confederate cruisers fitted out in British ports in violation of neutrality, one of the strongest authorities on which they relied was his opinion in the case of the "Gran Para."

In the decision of prize cases, Marshall, unlike some of his associates, was disposed to moderate the rigor of the English doctrines, as laid down by Sir William Scott. "I respect Sir William Scott," he declared on a certain occasion, "as I do every truly great man; and I respect his decisions; nor should I depart from them on light grounds; but it is impossible to consider them attentively without perceiving that his mind leans strongly in favor of the captors." This liberal disposition, blended with independence of judgment, led Marshall to dissent from the decision of the court in two well-known cases. In one of these, which is cited by Phillimore as the "great case" of "The Venus," it was held that the property of an American citizen domiciled in a foreign country became, on the breaking out of war with that country, immediately confiscable as enemy's property, even though it was shipped before he had knowledge of the war. Marshall dissented, maintained that a mere commercial domicile ought not to be presumed to continue longer than the state of peace, and that the fate of the property should depend upon the conduct of the owner after the outbreak of the war, in continuing to reside and trade in the enemy's country or in taking prompt measures to return to his own. In the other case--that of the "Commercen"--he sought to disconnect the war in which Great Britain was engaged on the continent of Europe from that which she was carrying on with the United States, and to affirm the right of her Swedish ally to transport supplies to the British army in the Peninsula without infringing the duties of neutrality towards the United States. As to his opinion in the case of "The Venus," Chancellor Kent declared that there was "no doubt of its superior solidity and justice;" and it must be admitted that his opinion in the case of the "Commercen," rested on strong logical grounds, since the United States and the allies of Great Britain in the war on the Continent never considered themselves as enemies.

It is not, however, by any means essential to Marshall's pre-eminence as a judge, to show that his numerous opinions are altogether free from error or inconsistency. In one interesting series of cases, relating to the power of a nation to enforce prohibitions of commerce by the seizure of foreign vessels outside territorial waters, the views which he originally expressed in favor of the existence of such a right appear to have undergone a marked, if not radical, change, in favor of the wise and salutary exemption of ships from visitation and search on the high seas in time of peace (Rose _v_. Himely),--a principle which he affirmed on more than one occasion (The Antelope). In the reasoning of another case, though not in its result, we may perhaps discern traces of the preconceptions formed by the advocate in the argument concerning the British debts. This was the case of Brown _v_. United States, which involved the question of the confiscability of the private property of an enemy on land, by judicial proceedings, in the absence of an Act of Congress expressly authorizing such proceedings. On the theory that war renders all property of the enemy liable to confiscation, Mr. Justice Story, with the concurrence of one other member of the Court, maintained that the Act of Congress declaring war of itself gave ample authority for the purpose. The majority held otherwise, and Marshall delivered the opinion. Referring to the practice of nations and the writings of publicists, he declared that, according to "the modern rule," "tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be immediately confiscated;" that "this rule" seemed to be "totally incompatible with the idea that war does of itself vest the property in the belligerent government;" and, consequently, that the declaration of war did not authorize the confiscation. Since effect was thus given to the modern usage of nations, it was unnecessary to declare, as he did in the course of his opinion, that "war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found," and that the "mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice," though they "will more or less affect the exercise of this right," "cannot impair the right itself." Nor were the two declarations quite consistent. The supposition that usage may render unlawful the exercise of a right, but cannot impair the right itself, is at variance with sound theory. Between the effect of usage on rights, and on the exercise of rights, the law draws no precise distinction. A right derived from custom acquires no immutability or immunity from the fact that the practices out of which it grew were ancient and barbarous. We may therefore ascribe the dictum in question to the influence of preconceptions, and turn for the true theory of the law to an opinion of the same great judge, delivered twenty years later, in which he denied the right of the conqueror to confiscate private property, on the ground that it would violate "the modern usage of nations, which has become law" (U.S. _v_. Percheman).

United with extraordinary powers of mind, we find in Marshall the greatest simplicity of life and character. In this union of simplicity and strength he illustrated the characteristics of the earlier period of our history. He has often been compared with the great judges of other countries. He has been compared with Lord Mansfield; and although he did not possess the extensive learning and elegant accomplishments of that renowned jurist, the comparison is not inappropriate when we consider their breadth of understanding and powers of reasoning; and yet Mansfield, as a member of the House of Lords, defending the prerogatives of the Crown and Parliament, and Marshall as an American patriot, sword in hand, resisting in the field the assumptions of imperial power, represent opposite conceptions. He has been compared with Lord Eldon; and it may be that in fineness of discrimination and delicate perceptions of equity he was excelled by that famous Lord Chancellor; and yet no greater contrast could be afforded than that of Eldon's uncertainty and procrastination on the bench with Marshall's bold and masterful readiness. He has been compared with Lord Stowell, and it may be conceded that in clearness of perception, skill in argument, and elegance of diction, Lord Stowell has seldom if ever been surpassed. And yet it may be said of Marshall that, in the strength and clearness of his conceptions, in the massive force and directness of his reasoning, and in the absolute independence and fearlessness with which he announced his conclusions, he presents a combination of qualities which not only does not suffer by any comparison, but which was also peculiarly his own.

Mr. Justice Miller once declared that the Supreme Court of the United States was, "so far as ordinary forms of power are concerned, by far the feeblest branch or department of the Government. It must rely," he added, "upon the confidence and respect of the public for its just weight and influence, and it may be confidently asserted that neither with the people, nor with the country at large, nor with the other branches of the government, has there ever been found wanting that respect and confidence." The circumstance that this statement of the learned justice, himself one of the brightest ornaments of the tribunal of which he spoke, has been received with general assent, affords the strongest proof that the successors of the Great Chief Justice and his associates have in no way fallen short of the measure of their trust; for, no matter how deeply the court may as an institution have been planted in the affections of the people, and no matter how important it may be to the operation of our system of government, its position and influence could not have been preserved had its members been wanting either in character, in conduct, or in attainments.


Chief Justice Marshall: an address by Mr. Justice Story; Eulogy on the life and character of John Marshall, by Horace Binney; John Marshall, by Allan B. Magruder (American Statesmen Series); The Development of the Constitution as influenced by Chief Justice Marshall, by Henry Hitchcock; John Marshall, by J.B. Thayer; The Supreme Court of the United States, by W.W. Willoughby; John Marshall, by C.F. Libby; Chief Justice Marshall, by John F. Dillon; Mr. Justice Bradley, Century Magazine, December, 1889; and cases in the Reports of the Supreme Court of the United States as follows: Ware _v_. Hylton, 3 Dallas, 199; Marbury _v_. Madison, 1 Cranch, 137; Cohens _v_. Virginia, 6 Wheaton, 264; McCulloch _v_. Maryland, 4 Wheaton, 316, 421; Gibbons _v_. Ogden, 9 Wheaton, 1; Schooner Exchange _v_. McFaddon, 7 Cranch, 116; Foster _v_. Neilson, 2 Peters, 253; American Insurance Co. _v_. Canter, I Peters, 511; U.S. _v_. Percheman, 7 Peters, 51; Johnson v. McIntosh, 8 Wheaton, 543; The Antelope, 10 Wheaton, 66; 11 Wheaton, 413; The Gran Para, 7 Wheaton, 471; The Venus, 8 Cranch, 253, 299; The Commercen, 1 Wheaton, 382; Church _v_. Hubbart, 2 Cranch, 187; Rose _v_. Himely, 4 Cranch, 241; Brown _v_. United States, 8 Cranch, 110.