Beacon Lights of History, Volume 11: American FoundersLord, John
History
Beacon Lights of History, Volume 11: American Founders
Lord, John
History; United States -- Biography
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
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