John Marshall, The number of causes turning on points of constitutional law which were decided by the Supreme Court while he was at its head was about sixty. During the same period over a hundred were determined which passed upon questions of the law of nations. In these, as in all other matters of judicial controversy, Marshall paid more regard to principle than precedent in coming to his conclusions. He did not hesitate to differ from so great a Judge as Sir William Scott in determining the effect of war upon a com mercial domicil, even when he stood almost alone, and was driven to a position of dis sent.1 But what are principles? Those of inter national law are often founded rather on usage than on reason. Such is the claim of title by discovery to lands inhabited by sav ages. Marshall, while frankly admitting that it was opposed to natural right, held that it made Indian deeds of no avail against gov ernment grants.2 The slave trade, he soon afterwards declared, was against the law of nature, but as all nations had at times prac ticed it, while any continued to do so it could not be pronounced contrary to inter national law.3 When Marshall stepped from the Depart ment of State upon the bench the treaty which his predecessor, Chief Justice Ells worth, and his associate envoys to France had negotiated with Napoleon was still pend ing for ratification. A long series of cases growing out of French seizures of neutral vessels was to follow. Other causes of in ternational importance arose after the War of 1812 with Great Britain, and later, under our treaties of cession with Spain. The judiciary of a nation like ours, in which the courts are not under the control of the execu'The Venus, 8 Cranch, 253. Recent decisions of British courts, not in affirmance of principles laid down before the Revolution, he regarded as entitled intrinsically to no greater weight than those of any other country. Thirty Hogsheads v. Boyle, 9 Cranch, 191. 'Johnson *. M'Intosh, 8 Wheat., 543. 3The Antelope, ю Wheat., 60.
229
tive, may do much towards involving it in war, and much towards saving it from war. Under Marshall's lead the courts of the United States were a power for peace. They were such because their judgments were based on an intelligent understanding of in ternational law and a serious purpose to ap ply it with an even hand to all. In this, during nine years of Marshall's term of office, he was greatly aided by the accession of Henry Wheaton to the posi tion of the official reporter of the decisions of the court. Wheaton was, no doubt, the American who had done most to make inter national law a science. To have in every case involving its application such a man at hand, on whom to call for counsel and criticism, was a source of strength. . . . But Marshall's was a stronger mind than Wheaton's or than Story's. They had read more deeply. He had thought more deeply, and it is a man's own thought alone that can make him great.1 McCULLOCII v. MARYLAND.
Marshall's leading Constitutional opin ions may be divided into three classes: First, such as discuss the general character and reach of the Federal Constitution, and the general relation of the Federal Gov ernment of the. States. Of this class, McCulloch 7>. Maryland, probably his greatest opinion, is the chief illus tration. Second, those cases which are concerned with the specific restraints and limitations upon the States, imposed by the Federal Constitution. To this class may be assigned Fletcher v. Peck, the bankruptcy cases of Sturges 7'. Crowninshield, and Ogden 7'. Saunders, and Dartmouth College v. Woodward. Third, such as deal with the general theory and principle of Constitu tional law. There is little of this sort. Ex cept as it is incidentally touched, perhaps the only case is Marbury 7'. Madison. . ' Honorable Simeon E. Baldwin, Justice of the Supreme Court of Connecticut, and President of the International Law Association.
