2

law of treason. He declared the invalidity of State laws impairing the obligations of contracts, while he affirmed the right of the States to pass insolvency laws, in the ab sence of the exercise by Congress of its power "to establish uniform laws on the subject of bankruptcies." He upheld the supremacy of the judgments of the courts of the United States as against inconsistent State laws. He maintained the authority of Congress to make all laws necessary and proper to carry into effect the powers vested by the Constitution in the government of the United States, and, in the exercise of powers fairly implied, to incorporate a bank, free from the taxation, control or obstruction of any State. He affirmed that the power of Congress to regulate commerce embraced all the various forms of intercourse, including navigation, and that "wherever commerce among the States goes, the judicial power of the United States goes to protect it from invasion by State legislatures.'

997

To the rule that Marshall's great constitutional opinions continue to be received as authority, perhaps the chief exception is that delivered in the Dartmouth College case, the particular point of which that acts of incorporation constitute contracts which the State legislatures

8

1 Ex parte Bollman & Swartwout, 4 Cranch, 75; United States v. Aaron Burr, Ibid., App.

2 Fletcher v. Peck, 6 Cranch, 87; Dartmouth College v. Woodward, 4 Wheat. 518.

3 Sturges v. Crowninshield, 4 Wheat. 122.

United States v. Peters, 5 Cranch, 136; Cohens v. Virginia, 6 Wheat. 264.

United States v. Fisher, 2 Cranch, 358

McCulloch v. Maryland, 4 Wheat. 316, 421.

Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419. 8 Dartmouth College v. Woodward, 4 Wheat. 518.

can neither alter nor revoke - has been greatly limited by later decisions, while its effect has been generally obviated by express reservations of the right of amendment and repeal. With rare exceptions, however, his constitutional opinions not only remain unshaken, but continue to form the very warp and woof of the law, and "can scarcely perish but with the memory of the Constitution itself." Nor should we, in estimating his achievements, lose sight of the almost uncontested ascendency which he exercised, in matters of constitutional law, over the members of the tribunal in which he presided, in spite of what might have been supposed to be their predilections. When constitutional questions trench, as they often do, on the domain of statesmanship, it is natural, especially where precedents are lacking, that judges should divide upon them in accordance with the views of government maintained by the political parties with which they previously acted; and, after 1811, a majority of Marshall's associates on the bench held their appointment from administrations of the party opposed to that to which he had belonged. This circumstance, however, does not appear to have disturbed the consistent and harmonious development of the system to which he was devoted; and it was in the second half of his term of service that many of the most important cases such as McCulloch v. Maryland, Cohens v. Virginia, and Gibbons v. Ogden, in which he asserted the powers of the National Government were decided.

But it is not alone upon his decisions on questions of constitutional law that Marshall's fame as a judge rests. So marked was his supremacy in that domain, and so profoundly did his opinions affect the course of the National development, that we are accustomed to think of him in

the United States only as the expounder of the Constitution. This is not, however, his sole title to fame. He is known in other lands as the author of important opinions on questions which deeply concern the welfare and intercourse of all nations. In the treatment of questions of international law he exhibited the same traits of mind, the same breadth and originality of thought, the same power in discovering and the same certainty in applying fundamental principles that distinguished him in the realm of constitutional discussions; and it was his lot in more than one case to blaze the way in the establishment of rules of international conduct. During the period of his judicial service, decisions were rendered by the Supreme Court in one hundred and ninety-five cases involving questions of international law, or in some way affecting international relations. In eighty of these cases the opinion of the court was delivered by Marshall; in thirty-seven by Mr. Justice Story; in twenty-eight, by Mr. Justice Johnson; in nineteen, by Mr. Justice Washington; in fourteen, by Mr. Justice Livingston; in five, by Mr. Justice Thompson; and in one each, by Justices Baldwin, Cushing and Duvall. In eight the decision was rendered "by the court." In five cases Marshall dissented. As an evidence of the respect paid to his opinions by the publicists, the fact may be pointed out that Wheaton, in the first edition of his Elements of International Law, makes one hundred and fifty judicial citations, of which one hundred and five are English and forty-five American, the latter being mostly Marshall's. In the last edition he makes two hundred and fourteen similar citations, of which one hundred and thirty-five are English and seventy-nine American, the latter being largely Marshall's; and it is proper to add that one of the

distinctive marks of his last edition is the extensive incorporation into his text of the words of Marshall's opinions. Out of one hundred and ninety cases cited by Hall, a recent English publicist of pre-eminent merit, fifty-four are American, and in more than three-fifths of these the opinions are Marshall's.

One of the most far-reaching of all his opinions on questions of international law was that which he delivered in the case of the schooner Exchange, decided by the Supreme Court in 1812.1 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 manof-war and commissioned under the name of the "Balaou." In this character she entered a port of the United States, where she was libeled by the original American owners for restitution. Reasoning 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.2

By this decision the rightfulness or the wrongfulness

1 Schooner Exchange v. McFaddon, 7 Cranch, 116.

2 This opinion was textually incorporated by Wheaton into his Elements, where it forms the statement of the law on various topics. Dana's Wheaton, pp. 154-162.

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 should refuse to abide by the measures adopted by its own government. If those departments which are intrusted 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." "

He also 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

United States v. Palmer, 3 Wheaton, 610; The Divina Pastora, 4 Wheaton, 52.

2 Foster v. Neilson, 2 Pet. 253.