ed by the court in his time he delivered the opinion of the court in eighty cases, many of which have exercised wide influence in the development of this branch of jurisprudence. His opinion in the case of The Exchange v. McFaddon, 7 Cranch 116, "is and always will be," as Lord Justice Brett said in the Court of Appeal, "the first case upon the question of the exemption of ships of war to be care fully considered." His opinion in what Phillimore terms the "great case" of The Venus, 8 Cranch 253, has 'been deemed a salutary moderation of the rigor of Lord Stowell's doctrines with respect to prize. Other wellknown cases on questions of international law, in which his conclusions have been ac cepted as authoritative are United States v. Palmer, 3 Wheaton 610; The Gran Para, 7 ib. 471; Johnson v. Mclntosh, 8 ib. 543; The Antelope, 10 ib. 66; Foster v. Neilson, 2 Peters 253; Soulard v. United States, 4 ib. 511. In this subject, his opinion carried only a little less weight than in the consideration of questions of constitutional law, since he found himself in the minority in only five cases. But his conclusions in the case of the Nereide, 9 Cranch 389, have been severely criticised as carrying the etiquette of inter national law to extreme limits. Compare, also, Church v. Hubbart, 2 Cranch 187, with Rose v. Himley, 4 ib. 241, and the limitation of the latter case in Hudson v. Guestier, 6 ib. 281; and Brown v. United States, 8 Cranch no, with his later opinion in United States v. Percheman, 7 Peters 51. With respect to the more familiar titles of the law it would be idle to claim for him the highest rank. In extent and accuracy of learning he was easily surpassed by his col league Story, and by many other jurists since his time. A familiar illustration of his limitations in this respect is his decision on the recondite subject of charitable trusts in Philadelphia Baptist Association v. Hart, 4 Wheaton I, which Horace Binney demon strated in the argument of the subsequent
case of Vidal v. Girard's Executors, 2 How ard 127, to have been founded upon a mis conception of the early authorities. Even in the domain of constitutional law, his judgment was not infallible, and his opin ions occasionally leave something to be de.sired. Soon after taking his seat as chief jus tice there came before the court the case of Marbury v. Madison, involving one of those very ante-mortcm appointments which had prompted the hostile legislation and shown the judges the insecurity of their position in the government. The facts of this now mem orable case are well known. President Adams had nominated Marbury for the office of jus tice of the peace, the nomination had been confirmed, and a commission had been signed and sealed; but it had not been deliv ered when Jefferson came into office, and was supposed to be withheld by Madison, Mar shall's successor as Secretary of State. Marbury therefore applied to the court for a writ of mandamus against the Secretary of State to compel the delivery of the commission. Undismayed by the hostility of his adversa ries, Marshall resolved to force the fighting. The court decided, in an opinion delivered by him, that it had no jurisdiction to grant the writ because the Constitution allowed it no such power; and although an act of Congress had undertaken to confer this jurisdiction on the court, Congress had no power to do so. and therefore the act was void, and would be disregarded by the court. There is a popular impression that this opinion, as far as it re lated to the constitutional question, was obiter. But this is not true; it was strictly within the issue. More than three-fourths of the opinion is really obiter, but all this dictum relates to the demonstration that the commission was improperly withheld and that mandamus would lie if the court had jurisdiction. Since, however, the court had no jurisdiction, this lecture to the execu tive was a mere matter of personal opinion. In this, then, the sixth case decided since
