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power of acquiring territory, either by conquest or by treaty.” 1
But he held the rights of private property in such case to be inviolate. 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.
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.”
The exemption from seizure and confiscation of the goods of a neutral on board of an armed vessel was maintained by him in the case of The Nereide. When the representatives of the United States 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 Am. Ins. Co. v. Canter, 1 Pet. 511.
2 Soulard v. United States, 4 Pet. 511; United States v. Percheman, 7 Pet. 51; Keene v. McDonough, 8 Pet. 308.
3 Johnson v. McIntosh, 8 Wheaton, 543.
“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, maintaining 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 Commercenhe 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 toward the United States. As to his opinion in the case of The Venus, Chancellor Kent
1 The Venus, 8 Cranch, 253, 299. 28 Cranch, 253. 31 Wheaton, 382.
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 - a principle which he affirmed on more than one occasion. 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
1 Church v. Hubbart, 2 Cranch, 187.
2 Rose v. Himely, 4 Cranch, 241. It was argued by Mr. E. J. Phelps, in the Fur Seal Arbitration, that the views expressed by Marshall in Church v. Hubbart, 2 Cranch, 187, were adopted by the Supreme Court in Hudson v. Guestier, 6 Cranch, 281. The latter case, however, merely decided that the sentence of a foreign court is conclu. sive as to the property condemned by it, and that it is not in this respect judicially reviewable by the court of another country. Mar. shall did not concur in this decision.
3 The Antelope, 10 Wheaton, 66.
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.” 1
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 Marsball's bold and masterful readiness. He has been compared with Lord Stowell; and it may be con
1 United States v. Percheman, 7 Peters, 51.