by the French government into a man-of-war, and commissioned under the name of the “Balaou.”  In this character she entered a port of the United States, where she was libelled by the original American owners for restitution.  Seasoning 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.

By this decision, the rightfulness or the wrongfulness 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 side should refuse to abide by the measures adopted by its own government....  If those departments which are entrusted 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.” (Foster v.  Neilson).

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.”